Foreign Relations of the United States Diplomatic Papers, 1934, General, the British Commonwealth, Volume I

711.4215 Air Pollution/458

The Secretary of State to the Minister in Canada ( Robbins )

No. 194

Washington , January 27, 1934.

Sir: I acknowledge the receipt of the Legation’s despatch No. 318, of December 26, 1933,²⁶ transmitting a copy of a note of the same date by which the Department of External Affairs of Canada responded to the Legation’s note of February 17, 1933,^26a regarding the matter of the Trail Smelter. In the Legation’s note mentioned there was set forth the outline of a treaty which was proposed as a solution of the Trail Smelter problem.

I can not refrain, first, from expressing disappointment at the position taken by the Canadian Government, and at its failure to discuss the concrete proposals made in the Legation’s communication of February 17, 1933, that a schedule should be adopted in accordance with which the amount of sulphur dioxide discharged by the smelter and the rate of discharge should be progressively reduced, and that damages should be assessed by a board or commission to be established for that purpose.

The Canadian Government has now made a definite proposal and notwithstanding the disappointment caused by the failure of the Canadian Government to discuss concrete proposals made on the part of the United States, I shall answer fully and I hope clearly the proposals made by that Government.

The Canadian Government proposes that the Government of the United States and the Government of Canada conclude a convention among the preliminary recitals of which is included the following:

“Taking note of a complaint made by the Government of the United States, to the Government of Canada, with regard to sulphur dioxide fumigations in the Northport neighborhood on March 9th to 12th, 1933, and on April 5th, 1933, and recognizing the desirability of making an immediate investigation into the effect of the works and into the question as to whether damage, as defined in the Joint Report, has been eliminated, and particularly as to whether damage, as therein defined, has been caused by the said fumigations …

This recital recognizes:

(1) The desirability of making an investigation into the effect of the remedial works installed at the smelter;

(2) The desirability to investigate the question whether damage as defined in the Report rendered by the International Joint Commission on February 28, 1931,²⁷ has been eliminated, and

(3) Whether damage as defined in that Report was caused by the fumigations or visitations of fumes which occurred on March 9 to 12, 1933, and on April 5, 1933.

It is not perceived that the effect of the remedial works, which have been installed at the smelter, is relevant to the question with which the Government of the United States and the Government of Canada are concerned, so long as, despite those works, sulphur dioxide is causing injury in the United States. Whether damages are occurring in the State of Washington as a result of the operation of the smelter is understood to depend on the pollution of the air in the State of Washington, mainly with respect to its content of sulphur dioxide. It is believed to be proper for the Government of the United States to look to the Canadian Government to cause such action to be taken as will prevent the pollution of the air in the State of Washington by smelter fumes. Whether the Canadian interests elect to bring about the improved condition of the air by the use of remedial works, or otherwise, is of no concern to United States interests so long as the desired results are attained. Therefore, United States interests are not advocating particular methods for eliminating the nuisance, and of course are not responsible for the efficacy of any works which Canadian interests have decided or may decide to employ.

So long as fumigations occur in the State of Washington with such frequency, duration and intensity as to cause injury, the conditions precipitated by the operation of the smelter afford grounds of complaint on the part of the United States, regardless of the remedial works which the company employs and regardless of the effect of those works.

It is understood that remedial works have been installed and put in operation at the smelter. Presumably, a smaller quantity of sulphur dioxide is discharged at the smelter when the remedial works are operating than would be discharged if those works were not operating. Notwithstanding that some of the sulphur dioxide may have been removed, harmful fumigations have continued throughout 1932 and 1933. If fumigations, which cause damage, recur despite the remedial works, determination of the effect of the remedial works would not contribute toward affording redress to American interests, would not benefit those interests and would not advance the case toward a solution.

The frequency, duration and severity of fumigations are known. The condition in which the air in the affected area in the State of Washington is kept by reason of such fumigation is known. These are the factors with which it is necessary to reckon in solving the problem in hand. Inquiry into the effect of remedial works would not contribute to an early solution. Such an inquiry would merely postpone a solution. It would aggravate, not solve, the difficulty.

This smelter fumes problem in its various phases and aspects has been under intensive investigation since 1928. An abundance of data is now available on which to predicate whatever arrangement it is necessary to make between the two Governments to provide for an adjustment. It is not believed that after five years of intensive study any amount of further investigation will put the two Governments in a better position to devise a solution of this problem than they should be at the present time. I am advised by the experts who have been investigating the effects of sulphur dioxide fumigations from the Trail Smelter that acute, chronic, cumulative and permanent injury was in progress in the State of Washington for a considerable period before the investigation began in 1928 and has continued to the present time.

I am unable to acquiesce on the part of this Government in any suggestion that a new investigation be now undertaken and a settlement be correspondingly postponed.

The second question into which the recital quoted suggests an investigation is whether damage as defined in the Report of the Commission has been eliminated.

It is my view that the question here proposed for investigation does not define the problem with which the two Governments are called upon to deal. I can not acquiesce in the proposal to limit consideration of damage to damage as defined in the Report of the Commission.

The Commission’s definition of damage will be further considered in discussing paragraph (g) of the Commission’s Answer to question 5 of the reference.

The third question into which the recital quoted suggests that an investigation be made, is whether damage as defined in the Report of the Commission was caused by the fumigations which occurred on March 9–12, 1933, and on April 5, 1933. It is not perceived why an inquiry should be made into the results of the fumigations which occurred on the particular dates mentioned. No more reason is apparent why the results of those fumigations should be made the subject of investigation than there is why the results of every Other fumigation should be made the subject of special investigation. Damage resulting from the fumigations on the dates mentioned should, it is believed, be treated along with damage which, according to the advice of experts, is constantly occurring.

Unless the question of damage is dealt with in such a way as to admit of the consideration of all elements of damage, further prejudice is bound to result to United States interests affected by sulphur dioxide discharged by the smelter at Trail.

Article I

Canadian Draft

This article reads as follows:

“Article I

“The Governments accept the Joint Report which is annexed hereto as Appendix A, and is incorporated as a part of this Convention, and undertake to carry out their respective obligations thereunder.”

It is proposed by this Article that the two Governments shall accept the Report of the International Joint Commission, incorporate it in a convention, and undertake to carry out the obligations under the Report. This proposal of the Canadian Government necessitates a full and frank statement of the attitude of the Government of the United States with respect to the Report of the International Joint Commission on the Trail Smelter Reference.

Speaking first with respect to the undertaking to carry out the obligations of the two Governments under the Report, it may be said that it is not clear whether the Canadian Government considers that the obligations mentioned in Article I grow out of the Report itself or that the obligations, while not established by the Report itself, would be assumed if the Report were accepted by the two Governments and incorporated in a convention.

If the Canadian Government adheres to the latter view, I would have no difficulty concurring. If, however, it is intended to assert that the fact that the Commission made recommendations imposes on the two Governments an obligation to adopt them, I would be under the necessity of dissenting from the view of the Canadian Government.

I feel that there ought to be no doubt that the Report of the Commission is merely an advisory expression of that body. Article 9 of the Convention between the United States and Great Britain concluded January 11, 1909,²⁸ provides that questions of difference arising between the Government of the United States and the Government of Canada, or between the nationals of the two countries, shall be referred to the Commission for examination and report. By communications of the two Governments dated August 7, 1928,²⁹ by which the Trail Smelter problem was referred to the Commission pursuant to Article 9 of the Convention of 1909, the Commission was asked to investigate, report and recommend. It is noteworthy that Article 9 authorizes the Commission in each case referred to it under that article to examine into and report upon the facts and circumstances of the particular questions and matters referred, together with such conclusions and recommendations as may be appropriate and that the article contains a further provision that:

“Such reports of the Commission shall not be regarded as decisions of the questions or matters so submitted either on the facts or the law, and shall in no way have the character of an arbitral award.”

In view of the provisions of Article 9 of the Convention and of the terms of reference, I feel that there can be no room for doubt as to the effect and bearing of the Report of the Commission on the problem with which the two Governments are confronted. The Report has no binding effect on either Government—it is permissible for both Governments to accept it in whole or in part, or for either Government to reject it without prejudice to its interests.

I shall now endeavor to explain why I do not feel that it is desirable to incorporate the Report of the Commission in a convention between the two Governments. It should be understood that in discussing the Report of the Commission, I am not actuated by a disposition to criticize the Commission. I realize that the Reference presented a difficult problem to the Commission. The proposal of the Canadian Government, however, necessitates the acceptance of the Report in its entirety by the Government of the United States or the rejection of it. If the Report is not accepted, the Canadian proposal leaves no alternative but to reject it and to state reasons for so doing. I, therefore, take up in numerical order the answers made by the Commission to the five questions of the Reference.

Question 1.

The unwillingness of the United States to accept the Report of the Commission is not attributable in any way to the answer made by the Commission to the question. A discussion of Question 1 is, therefore, unnecessary for the purpose of this communication.

Question 2.

The second question on which the Commission was asked to report reads as follows:

“(2) The amount of indemnity which would compensate United States interests in the State of Washington for past damages.”

The Commission answered this question as follows:

“In view of the anticipated reduction in sulphur fumes discharged from the smelter at Trail during the present year, as hereinafter referred to, the Commission therefore had deemed it advisable to determine the amount of indemnity that will compensate United States interests in respect of such fumes, up to and including the first day of January, 1932. The Commission finds and determines that all past damages and all damages up to and including the first day of January next, is the sum of $350,000. Said sum, however, shall not include any damage occurring after January 1st, 1932.”

It is customary for international commissions in making pronouncements affecting human relations and property rights or other legal rights to give reasons for the conclusions which they announce. There was inherent in the Trail Smelter Reference a complex damage problem. Interests in the United States claimed direct damage to land, soil, timber, crops, orchards, live stock, health of inhabitants and other forms of direct damage, as well as various forms of indirect damage. The Commission named a lump sum of $350,000, with practically no discussion of reasons why it named that figure.

It is interesting to note that The Hague Convention of 1907, for the Pacific Settlement of International Disputes³⁰ provides in Article LXXIX that the arbitrators shall give reasons for the decisions which they announce. Article 56 of the Statute of the Permanent Court of International Justice³¹ contains a similar requirement.

Attention is called in this relation to a note which the Secretary of State addressed to the Norwegian Legation at Washington under date of February 26, 1923,³² in transmitting a draft in payment of the award rendered in 1922 in the arbitration of Norway against the United States. The communication mentioned is published in Volume 17, The American Journal of International Law, page 287, 289. In this communication the Secretary of State said:

“It is also to be regretted that the award fails to give a satisfactory explanation of the manner in which the tribunal has arrived at the amounts awarded. While purporting to award compensation on the basis of the fair market value of the property taken, the tribunal has seen fit to omit discussion of the particular circumstances of the different claims or of the methods of calculation applied, or of the reasons for determining upon the amounts awarded in each case. Indeed, any definite disclosure or specification of the particular grounds of the awards to the respective claimants is so entirely lacking that the award gives to one who examines it no clue to the method of determining why one amount was awarded rather than another. Again, although holding that claimants were entitled to interest and that some claimants were entitled to higher rates of interest than others, the tribunal does not reveal the rates of interest which were allowed on the various claims or the period of time for which interest was calculated or the amounts which were awarded as principal and the amounts awarded as interest.

“The inadequacy of the award in these respects is particularly regretted in view of the requirements of Article 79 of the Hague Convention of October 18, 1907, pursuant to which the Norwegian claims were submitted to arbitration, that the award must give the reasons on which it is based. In these circumstances the Government of the United States, while not rejecting the award, feels obliged to direct attention to the requirements of appropriate arbitral procedure, and to state that it cannot accept as proper or satisfactory in international arbitrations the mode by which the tribunal has assessed damages or the absence of a reasoned statement indicative of the methods of their computation.”

It is believed that the remarks of Secretary Hughes are peculiarly pertinent to the proposal of the Canadian Government that the Report of the International Joint Commission be incorporated in a Convention, particularly as the Commission purported to assess damage for a period extending almost two years beyond the closing of the hearings and almost one year beyond the date of the Report of the Commission.

Having been impressed by practical experience with the importance and necessity of having reasons for conclusions reached by international tribunals fully stated in any pronouncements made by them, the Government of the United States could scarcely be expected to accept unconditionally, and effectuate, as the Canadian Government proposes shall be done, a pronouncement by the International Joint Commission so lacking in the essential quality of a binding arbitral award.

Quite aside from this very substantial consideration, it is apparent from a reading of the answer of the Commission to the second question of the Reference that the Commission expected that there would be a reduction in the amount of sulphur dioxide discharged from the Smelter during the year 1931. The significance to the Commission of this expected reduction in the quantity of sulphur dioxide discharged is indicated by its answer to Question 3, where it is stated that damage from fumes should be greatly reduced, if not entirely eliminated, by the end of 1931.

Authentic information as to conditions at the Smelter throughout the year 1931 in so far as those conditions affected the quantity of sulphur dioxide discharged and the rate of discharge is not available. The expected reduction in sulphur dioxide was to be brought about by the installation and operation at the Smelter of remedial works to remove the sulphur gases thus preventing their discharge into the air. No report is available as to the dates on which the several units of these remedial works were put into operation or as to the amount of sulphur dioxide which these works actually converted.

While authentic information is not available as to the quantity of sulphur dioxide discharged and the rate at which it was discharged from the Smelter at Trail in 1931, authentic information is available as to the extent to which the air was polluted in the State of Washington as a result of the discharge of sulphur dioxide from the Smelter. It is with conditions in the State of Washington resulting from the operation of the Smelter that United States interests are concerned.

The automatic recorder maintained at Northport, Washington, which is in the affected area, indicated for November and December, 1930, that sulphur dioxide was present in the atmosphere on 69 percent of the days and 32 percent of the hours. The longest continuous visitation of fumes in those months was 55 hours. The maximum concentration of sulphur dioxide for those months was .70 ppm.

The same automatic recorder for April, 1931, showed the presence of sulphur dioxide 43 percent of the days, 10 percent of the hours. The longest visitation was 14.67 hours. The maximum concentration for the month was .51 ppm.

For the month of June, 1931, the recorder showed the presence of sulphur dioxide 80 percent of the days, 26 percent of the hours. The longest continuous fumigation was 47.2 hours. The maximum concentration for the month was .80 ppm.

In August, 1931, the recorder showed the presence of sulphur dioxide 77 percent of the days, 13 percent of the hours. The longest continuous fumigation was 29.33 hours. The maximum concentration was .43 ppm.

In October, 1931, the recorder showed the presence of sulphur dioxide 61 percent of the days, 17 percent of the hours. The longest continuous fumigation was 13.66 hours. The highest concentration for the month was .17 ppm.

In December, 1931, the recorder showed the presence of sulphur dioxide 45 percent of the days, 25 percent of the hours. The longest continuous fumigation was 47 hours. The highest concentration recorded was .54 ppm.

It may be added that reports on frequency, duration and intensity of fumigations for 1932 and 1933 do not show the improvements with respect to atmospheric pollution which were apparently anticipated by the Commission. Some months showed conditions to have improved in comparison to general conditions in 1930—other months showed aggravated conditions. In March, 1933, a fumigation lasting 57.67 hours was reported with a maximum concentration of .82 ppm. Reports subsequent to March, 1933, indicate that there have been numerous fumigations of long duration with high concentration.

It is apparent from the answers to Questions 2 and 3 that the Commission fixed the amount of damage in answering Question 2 in anticipation of a substantial reduction, if not elimination, within the year 1931, of damage from fumes. Investigation shows that the expected reduction in damage in the State of Washington did not materialize. I am advised by experts that severe injury continued through 1931.

It seems clear that the Commission predicated its recommendation as to the amount of damage in answer to Question 2, in part at least, on an expected reduction in the amount of sulphur dioxide discharged from the Smelter in 1931. Analysis of air shows that the expected improvement did not take place. Unqualified acceptance of the answer to Question 2 would entail acquiescence on the part of the United States in the view that damage was greatly reduced or eliminated in 1931, contrary to determined facts.

In view of the foregoing discussion of the answer given by the Commission to Question 2 of the Reference, it ought to be apparent that the Government of the United States could not appropriately accept without qualification the answer to Question 2. If a part of the Report can not be accepted, obviously the Report can not be accepted in its entirety.

Question 3.

The third question on which the Commission was asked to report was:

“Probable effect in Washington of future operations of smelter.”

The Commission answered this question as follows:

“Provided that the Company having commenced the installation and operation of works for the reduction of such fumes, proceeds with such works and carries out the recommendation of the Commission set forth in answer to Question (5), the damage from such fumes should be greatly reduced, if not entirely eliminated, by the end of the present year.”

It will be noted that the Commission in effect expressed the view that if the Company commenced the operation of the works for the reduction of the fumes, as recommended by the Commission, the damage from the fumes would be greatly reduced, if not eliminated, by the end of 1931.

Authentic information as to the dates on which the several units of the remedial works were put in operation at the smelter is not available. There are available, however, records showing the condition of the air in the area in the State of Washington affected by sulphur dioxide practically day by day through the year 1931. The results of the operation of the automatic recorder at Northport for several months in 1931 were set forth above. The frequency, duration and intensity of fumigations which occurred throughout 1931 were such as have been demonstrated experimentally to cause substantial injury to trees and other vegetation. There is no reason to think that the damage was greatly decreased in the year 1931. The evidence is to the contrary.

Acceptance of the answer to Question 3 would entail an admission that damage had substantially decreased since the report of the Commission was rendered. In the light of the actual conditions as they have been observed in the affected area, I do not feel that such an admission can properly be made on the part of the United States.

Question 4.

The fourth question on which the Commission was asked to report was:

“Method of providing adequate indemnity for damages caused by future operations.”

The Commission answered this question as follows:

“Upon complaint of any person claiming to have suffered damage by the operations of the Company after the first day of January, 1932, it is recommended by the Commission that in the event of any such claim not being adjusted by the Company within a reasonable time, the Governments of the United States and Canada shall determine the amount of such damage, if any, and the amount so fixed shall be paid by the Company forthwith.”

The adoption of this recommendation would require that complainants in the State of Washington file their claims with the Company as a prerequisite to their obtaining indemnification. It is not believed that such a requirement can justly be imposed as a condition to the recovery of indemnity for injury caused in the territory of one country by an agency operating in the territory of another country. Practical considerations can not be disregarded in discussing this recommendation of the Commission. The history of this controversy abundantly attests the attitude of the complainants and of the Company with respect to damage, and toward each other. Past experience does not point to a reasonable expectation that any progress would be made toward the settlement of questions of damage by requiring complainants to present their claims to the Company.

There has not at any time been any obstacle to direct negotiations and direct settlements between complainants and the Company which would not continue to exist if the report of the Commission were adopted by the two Governments. There is no reason to expect that a method which has been available throughout the long period of the controversy but which was not voluntarily employed would yield any beneficial results if an attempt were made to force it on the parties as a condition to the recovery of indemnities. I am confident that the adoption of this recommendation would be futile. To incorporate it in an agreement would result in needless delay.

The Company is trespassing on property in the State of Washington without any show of right and I should deem unfair and futile the imposition on complainants of a condition to the recovery of indemnities such as would be entailed in the acceptance of the answer to Question 4.

It is noteworthy too that the phrase “damage by the operations of the Company after the first day of January, 1932,” excludes substantial elements of injury from the scope of the recommendation, that is, injuries caused by fumigations prior to January 1, 1932, but which were not apparent on that date.

The answer to the fourth question, if adopted, would require that if claims are not adjusted within a reasonable time by the Company, the two Governments should endeavor to agree upon the amount of damage. There is no assurance that the representatives of the two Governments would be able to agree on the amount of indemnity to be paid.

The recommendation contains no provision for the determination of the amount of indemnity should the representatives of the two Governments be unable to agree. If this part of the agreement were adopted and the two Governments were unable to agree on the amount of indemnity, there would be no settlement and the injured parties would be without redress. The two Governments would be in substantially the same position, so far as damage occurring subsequent to January 1, 1932, is concerned, as they are now except that they would have exhausted the means which had been agreed upon as a solution. Any arrangement which admits of the possibility of a failure of a decision can not be regarded as a solution of the problem. Such an arrangement would, in my opinion, postpone rather than advance a solution.

In a communication which the American Legation addressed to the Department of External Affairs on February 17, 1933, it was proposed that damages be assessed by a board or commission to be established for that purpose. I am convinced that the only method of determining damage or of determining any other controversial question which arises in relation to this long pending case is to submit the question or questions to a neutral jurist or tribunal with authority finally to decide any relevant questions. I do not ask or expect that any questions which arise shall of necessity be decided in accordance with the contentions of United States interests. I assume that Canada would not expect that any questions relevant to the present controversy shall necessarily be decided in accordance with the contentions of Canadian interests. I am willing that any relevant questions shall be submitted to a neutral jurist or tribunal for final determination. This willingness to submit to a neutral jurist or tribunal questions which arise with respect to personal or property rights in the United States out of action taken outside the country represents no little consideration for Canadian interests.

In summary, the acceptance of the answer to Question 4 would, it is believed, impose undue hardship on United States interests: The recommendation contains no provision for the final determination of questions of damage, and hence the recommendation made in the answer to that Question is unsatisfactory to the United States.

Question 5.

The fifth question on which the Commission was asked to report reads:

“Any other phase of problem arising from drifting of fumes on which Commission deems it proper or necessary to report and make recommendations in fairness to all parties concerned.”

The Commission subdivided its answer to the fifth question of the Reference into paragraphs (a) to (g). In opening paragraph (a) the Commission announced that it deemed it proper and necessary in fairness to all parties concerned to report and make recommendations with reference to the reduction of the amount and concentration of sulphur dioxide drifting from the smelter into the United States. In concluding paragraph (a) the Commission recommended a method of reducing the amount and concentration of sulphur dioxide. Between the opening and concluding sentences the Commission recited what the Company had done and intended to do.

For the purposes of this communication I shall not discuss paragraph (a) of the answer to Question 5 with the exception of the last sentence of that paragraph. Because of the relation of paragraph (g) of the answer to question 5 to the concluding sentence of paragraph (a), those two parts of the answer will be considered together.

The concluding sentence of paragraph (a) reads:

“The Commission therefore reports and recommends that, subject to the provisions hereinafter contained, the Company be required to proceed as expeditiously as may be reasonably possible with the works above referred to, and also to erect with due despatch such further sulphuric acid units and take such further or other action as may be necessary, if any, to reduce the amount and concentration of SO2 fumes drifting from its said plant into the United States until it has reduced the amount by some means to a point where it will do no damage in the United States.”

Paragraph (g) reads:

“The word ‘damage’ as used in this document shall mean and include such damage as the Governments of the United States and Canada may deem appreciable, and for the purposes of paragraphs (a) and (c) hereof, shall not include occasional damage that may be caused by SO2 fumes being carried across the international boundary in air pockets or by reason of unusual atmospheric conditions. Provided, however, that any damage in the State of Washington howsoever caused by said fumes on and after January 1st, 1932, shall be the subject of indemnity by the Company to any interest so damaged, and shall not be considered as included in the answer to Question (2) of the Reference, which answer is intended to include all damage of every kind up to January 1st, 1932.”

It will be noted that in the portion of paragraph (a) quoted it is recommended that the Company proceed with remedial works and take such further or other action as may be necessary, if any, to reduce the amount and concentration of the fumes drifting into the United States to a point where the fumes will cause no damage in the United States. This, in terms, seems to contemplate that the nuisance in the State of Washington shall be entirely abated. This hopeful view is dispelled by the clause “subject to the provisions hereinafter contained”. Paragraph (g) is among the subsequent provisions of the report. The definition of the word “damage” as made in paragraph (g) has a significant bearing on the portion of the answer to Question 5 quoted. In paragraph (g) the word “damage” is so defined as to exclude from the meaning of the term “damage” as used in the concluding sentence of paragraph (a) occasional damage that may be caused by fumes being carried across the boundary in air pockets or by reason of unusual atmospheric conditions. This exception if adopted would clearly permit a continuation of occasional damage caused in the manner described.

Whether damage would or would not be occasional and would be permitted or forbidden would, if paragraph (g) were adopted, depend on the meaning to be attributed to “occasional damage”, “air pockets” and “unusual atmospheric conditions.” These terms are left undefined. The use of these terms leaves a fruitful field for controversy. Disputes would arise whether damages were occasional and whether the sulphur dioxide which caused damage was carried across the boundary in air pockets or by reason of unusual atmospheric conditions. No provision is made anywhere in the report for the determination of such disputes.

I am advised by experts and am convinced that for a considerable time before the stacks were elevated at the smelter, chronic, cumulative and permanent injury as well as acute damage caused by sulphur dioxide coming from the smelter at Trail was occurring and is still occurring in the State of Washington. I am advised and am confident that so long as sulphur dioxide is present in the State of Washington, with concentration sufficiently high to cause what may be contended to be “occasional damage” within the meaning of paragraph (g) of the answer to Question (5), chronic and cumulative injury will continue to occur. I am of the opinion that the recommendation that the smelter be required to reduce the amount and concentration of sulphur dioxide so that it will do no damage in the United States except occasional damage as described in paragraph (g) involves a contradiction, because pollution which will cause occasional damage will likewise cause injury of a permanent character which can not be classified as occasional.

If paragraph (g) of the answer to Question (5) were adopted, it would undoubtedly be contended that substantial elements of damage were thereby eliminated from future consideration.

Convinced as I am of the consequences of the acceptance of the last sentence of paragraph (a) as qualified by paragraph (g) of the answer to Question (5), I am sure that the Canadian Government will appreciate that I could not properly accept, on the part of the United States, the recommendations made by the Commission in the answer to Question 5 of the Reference.

Paragraph (b) of the answer to Question (5) reads as follows:

“The Commission further recommends that the Governments of the United States and Canada appoint scientists from the two countries to study and report upon the effect of the works erected and contemplated by the Company as aforesaid, on the fumes drifting from said smelter into the United States, and also to report from time to time to their respective Governments in regard to such further or other works or actions, if any, as such scientists may deem necessary on the part of the Company to reduce the amount and concentration of such fumes to the extent hereinbefore provided for.”

The acceptance of this part of the Report would require that the two Governments designate scientists whose duties would be:

1. To report upon the effect of the remedial works erected and contemplated by the Company, and

2. To report to the Governments what further or other works or actions are necessary on the part of the Company to reduce the amount and concentration of sulphur dioxide to the extent recommended by the Commission.

As previously stated, so long as fumigations occur in the State of Washington with such frequency, duration and intensity as to cause injury there, the conditions precipitated by the operation of the smelter are objectionable regardless of the remedial works which the Company employs and regardless of the effects of those remedial works. The proposal that scientists report on the effect of the remedial works employed by the Company has been considered in discussing a recital preliminary to the draft of the Convention proposed by the Canadian Government.

The proposal that the scientists should report what other works or actions are necessary on the part of the Company to reduce the amount and concentration of sulphur dioxide, would put the United States scientists in the position of advising as to what remedial works or other action on the part of the Company would restore the air in the United States to a condition required by the report. It is my view that United States interests are entitled to protection against damage and that the Company should be required to abate the nuisance. The problem of how the gas is to be controlled at the plant is essentially a Canadian problem. If the Report of the Commission, including this recommendation, were adopted in a Convention and a scientist representing the United States Government reported pursuant to the Convention that certain action or works were necessary to reduce the fumes, and the action or works recommended were taken or provided by the Company, the United States would share responsibility for the results. The United States is entitled to insist that an isolated agency without its borders, which is admitted to be polluting the air within its territory, shall desist from so doing. The right so to insist can not be conditioned on the giving of aid in the form of advice by scientists as to ways and means of controlling the nuisance at its source. It is to be noted furthermore that the Report, if adopted, would contain no assurance that the advice of the United States scientists would be accepted if given.

I do not deem it desirable that scientists of the United States undertake to measure the effects of the works already installed at the smelter or to recommend what additional works or action are necessary.

It should be observed, too, that paragraph (b) contains no provision for deciding the questions on which the scientists are to report in the event that they are unable to agree. Should the scientists fail to agree, no progress would have been made. Any arrangement which does not provide for a final decision of any question which might arise can not be regarded as a “permanent settlement” which the proposal of the Canadian Government is calculated to effect.

I am sure that the Canadian Government will appreciate that it is undesirable to accept, on the part of the United States, paragraph (b) of the answer made by the Commission to Question 5 of the Reference.

Paragraph (c) of the answer to Question 5 reads as follows:

“When the Company has reduced the amount and concentration of SO2 fumes emitted from its plant at Trail, British Columbia, and drifting into the territory of the United States, to a point where it claims it will do no damage in the United States, then it shall notify the Government of Canada, which shall thereupon forthwith notify the Government of the United States, which may then take up the matter with the Government of the Dominion of Canada for investigation and consideration to determine whether or not it has so reduced the amount and the concentration of SO2.”

It is obvious that this paragraph affords no effective means of determining whether damages have ceased when the Company notifies the Canadian Government to that effect. It is believed that interminable delay, investigation and controversy would result from the adoption of this recommendation. At any time the Government of the United States is convinced that the Company is trespassing on the territory of the United States and on the rights of residents and property owners in the United States, it is entitled to communicate with the Canadian Government regarding the matter. It would be a strange arrangement indeed, which would postpone or render inopportune such correspondence until the Company took some particular action.

It is not deemed necessary to quote or comment on paragraph (d) of the answer to question 5.

Paragraph (e) of the answer to question 5 reads as follows:

“This finding and recommendation under Question (5) must be read in connection with Questions (1), (2), (3) and (4); that is to say, if these conditions as above stated, under Question (5) are fully met, there will be no future indemnity to pay, that being included in the amount of damages embraced under Question (2), except as hereinafter provided.”

It will be observed that this paragraph contemplates that damage shall continue in the future. It, in effect, declares that if the remedial measures recommended by the Commission are adopted, no further damage except occasional damage as described in paragraph (g) would occur. Acceptance of this paragraph would entail acquiescence in the view that if occasional damage as described in paragraph (g) is permitted to continue, other damage would not accrue. No provision is made for indemnification if other damage should accrue.

It is believed that if a condition continues in which occasional damage as described in paragraph (g) occurs, chronic, cumulative, and permanent damage will also occur. Vegetation will be injured, trees will continue to die and reforestation will be impossible. The proposal to prevent all damage except occasional damage is believed to be impossible of accomplishment because so long as occasional damage occurs, other and permanent damage will occur.

Paragraph (f) of the answer to question 5 reads as follows:

“Any future indemnity will arise only if and when these conditions and recommendations stated under Question (5) are not complied with and fully met, and then only in respect of any damage done after the first day of January, 1932, as hereinafter provided.”

This, in effect, declares that no question of future indemnity will arise after the Company complies with the conditions recommended by the Commission in answer to the fifth question of the reference. It will be recalled that the recommendations of the Commission in answer to Question 5 contemplate that occasional damage caused by sulphur dioxide carried across the boundary in air pockets or by reason of unusual atmospheric conditions shall be permitted to continue, that is even after the Company complies with all recommendations, occasional damage will continue to occur.

Paragraph (f) of the answer to Question 5 seems to omit provision for recovery for damage occurring after the Company complies with the prescribed recommendations whether or not the damage be occasional. The last sentence of paragraph (g) has not been overlooked. That sentence seems to be inconsistent with paragraph (f) in so far as occasional damage is concerned. Neither paragraph (f) nor any other part of the Report makes provision for recovery for damage other than occasional damage occurring subsequent to January 1, 1932.

The recommendation made in paragraph (f) if adopted would omit recognition of rights to the enjoyment of which property owners are entitled. It is not believed that acceptance of such a recommendation can fairly be exacted as a condition to the settlement of the pending controversy.

Paragraph (g) of the answer to Question 5 has been considered in discussing the last sentence of paragraph (a).

In part 2 of the Report, the Commission recommends that the $350,000 shall be paid into the Treasury of the United States and that the Governor of the State of Washington shall appoint a responsible bonded administrator to allot the money to the individual claimants and that the money should be disbursed on the certificate of the administrator so appointed. The method of allotment proposed by the Commission would admit of the development of complications which it is the desire of the United States to avoid. The method of disbursement proposed does not comport with the laws and accounting system of the United States. This part of the Report is therefore unacceptable to the United States.

In part 3 of the Report, the Commission states that counsel for the Government of the United States announced that any claim in behalf of the Government had been withdrawn and the Commission pronounced a finding that any claim of the Government of the United States for past damage in respect of lands belonging to the Government had been waived.

The statement that the Government claims had been withdrawn is inaccurate. The record of the hearing shows that instead of withdrawing Government claims, those claims were expressly reserved. The following statement is quoted from the record of the hearing, pages 1190 and 1191:

“On behalf of the Government of the United States of America, I hereby reserve all rights on all lands which the National Government owns or administers in the area under investigation below Trail, British Columbia, in the State of Washington and in the United States, due to past, present and future cumulative progressive and irreparable damage caused by fumes from the stacks of the Consolidated Mining and Smelting Company of Canada, Limited, at Trail, British Columbia. This reservation applies to the national forests, to all other reserved public lands, and to the unreserved public domain under the control and protection of the Congress of the United States, under laws promulgated by the National Congress of the United States of America. It also applies to all Indian lands and allotments under the general supervision of Congress and of the Department of the Interior.”

Obviously this part of the Report of the Commission could not be accepted by the United States.

In part 4 of the Report the Commission recommends that Stevens County be not regarded as entitled to indemnity for alleged loss of taxes by reason of fumes, the claim of the County being regarded by the Commission as too remote and indefinite to permit of adjudication in the Report. It will be recalled that the Commission had no power of adjudication. If this part of the Report were accepted, Stevens County, without having had opportunity for adjudication of its claim, would be deprived of a remedy. It is not believed that the right of Stevens County under the laws of the United States should be waived on a basis of the Report of the International Joint Commission which would be done if that Report were accepted.

In part 5 of the Report, the Commission announces that it does not recommend payment of any indemnity for an alleged loss of trade by business men or loss of clientele or income by professional men, such claims being determined to be too remote and indefinite to permit an adjudication. The comment made with respect to part 4 applies to part 5 also.

Article II

Canadian Draft

In the second article of the draft convention, the Canadian Government proposes that $350,000 be paid for damage which occurred prior to January 1, 1932. The comments made in relation to the failure to give reasons for its recommendation as to the amount of damage to be paid made in discussing Article I, are pertinent to this proposal.

The acceptance of the $350,000 was among the proposals made by this Government to the Government of Canada. The proposal, however, was coupled with other proposals caluculated to bring about an abatement of the nuisance. The Canadian Government has not accepted the proposals of the United States, has not even discussed them in its note of December 26, 1933, but has responded with a series of new proposals, the effect of which, if adopted, would be to perpetuate the nuisance and would render impossible indemnification of American interests in adequate measure.

Article II of the Canadian proposal could be accepted only as a step in making satisfactory arrangements for the abatement of the nuisance in the future and for the payment of indemnity for injuries which occurred subsequent to January 1, 1932.

Article III

Canadian Draft

The first paragraph of this Article embodies paragraph (b) of the Commission’s answer to question five of the Reference. Paragraph (b) of the answer to question five was considered in discussing herein the first article of the convention proposed by the Canadian Government.

The second paragraph of Article III embodies the answer of the Commission to question four of the Reference, and paragraphs (f) and (g) of the answer to question five. The answer to question four and paragraphs (f) and (g) of the answer to question five were fully discussed in considering Article I.

The last sentence of the second paragraph of Article III reads as follows:

“For this purpose complaints shall be submitted to the Consolidated Mining and Smelting Company and to the scientists there. In the event that such claims are not adjusted by the company within a reasonable time, they shall make a report thereon to the Governments.”

This relates to complaints concerning occasional damage. This provision taken with other provisions of Article III would impose a hardship on complainants, which members of a community can not fairly be expected to bear. Under a regime established by this Article, it would be necessary for farmers to be on the lookout for occasional damage. Some impression of the burden which this necessity would impose will be realized when it is considered that there are more than 100,000 acres of land in the region affected by sulphur dioxide. It would be impossible to detect “occasional” injury over so large an area. Yet if “occasional” damage were not discovered and complaints were not promptly filed for every occasional injury, no indemnity whatever could be recovered.

The Article furthermore would require that complaints be reviewed by the company, by the scientists and by the Governments. These reviews would necessarily consume considerable time. They would put complainants to excessive inconvenience. Even if complainants assumed the burden which this article would impose on them, there would be no assurance that after the lapse of time which would be required to take the successive steps prescribed, there would be any assessment of damage. Unless there was a meeting of the minds at one of the three stages prescribed, there, of course, would be no assessment of damage. Yet all the provisions made by the convention with respect to damage would have been exhausted.

Acceptance of Article III would indicate acquiescence in perpetuation of the nuisance; omit provision for indemnification for substantial elements of damage; impose unreasonable hardships on United States interests; necessitate a repetition of complaints, and make no provision for final decision as to damage or any other question which might arise.

The phrase “damage caused by the operation of the Trail Smelter after the 1st of January, 1932”, occurring in the second paragraph of Article III, is worthy of special notice. The phrase as used would not include complaints for chronic and cumulative injury, which were caused prior to January 1, 1932, but had not become apparent prior to that date. The phrase under comment would restrict the scope of measures for indemnification.

It may be said in summary that Article I of the convention proposed by the Canadian Government is not acceptable because it seeks to have adopted the Report of the International Joint Commission and thereby to give it the effect of a decision while Article IX of the Convention of 1909 clearly provides that matters shall be referred for investigation and report and expressly declares that reports shall not have the effect of awards.

I am not willing to adopt the Report of the International Joint Commission on the Trail Smelter Reference because in my opinion—

1. The Report does not conform to approved standards which have been established for decisions of international tribunals and consequently is not susceptible of adoption as proposed by the Canadian Government.

2. The Report as to the amount of indemnity to be paid for damage up to January 1, 1932, was made by the Commission in expectation of a substantial reduction of damage in the year 1931, which did not occur.

3. The Report if adopted would entail the perpetuation of the nuisance; would omit provision for indemnity for substantial injury occuring after January 1, 1932, and would otherwise impose unjust hardship on United States interest.

4. The Report defines “damage” in undefined terms; contains provisions inconsistent with each other; provides for investigation of matter with which the United States is not concerned; would, if adopted, occasion interminable controversy; and would contain no provision for final determination of any question which would arise.

In my opinion, the features of the Report of the Commission, emphasized above, would favor the trespasser to the prejudice of the United States interests affected by the nuisance.

In stating reasons why the Canadian proposal is not acceptable, I have taken a position on questions pertaining to damage, have asserted the view that the nuisance ought of right to abate, and have indicated that I do not consider that the measures recommended by the Commission and proposed by the Canadian Government would result in the administration of justice to United States interests.

From consideration of the note of the Canadian Government, dated December 26, 1933, and the contents of this communication, it is apparent that the two Governments are not in agreement on some points which are material to a just solution of the problem in hand. It seems, therefore, to be necessary that some method be adopted by which these differences can be finally resolved. I describe below features of three types of agreement, any one of which, I believe, could be adopted by the two Governments without prejudice to Canadian interests.

1. A convention providing:

(a) “If the recording instrument installed and maintained at Boundary, Washington, or the recording instrument installed and maintained at Northport, Washington, each of which continuously records the sulphur dioxide at twenty-minute intervals, records as much as one-fifth of one part of sulphur dioxide by volume in one million parts of air as often as six times in any twenty-four-hour period or as much as one-tenth of one part of sulphur dioxide by volume in one million parts of air as often as nine times in any twenty-four-hour period in the three months beginning six months after the date of the exchange of ratifications of this convention, then the amount of sulphur dioxide discharged from the smelter at Trail and the rate of the discharge shall be reduced so that after the expiration of fifteen months from the date of exchange of ratifications of this convention there shall not be discharged a sufficient quantity of sulphur dioxide to cause the presence at Boundary or Northport, Washington, of as much as one-fifth of one part of sulphur dioxide by volume in one million parts of air as often as six times in any twenty-four-hour period or as much as one-tenth of one part of sulphur dioxide by volume in one million parts of air as often as nine times in any twenty-four-hour period.”

(b) The amount of indemnity which shall be paid for damage occurring prior to the taking effect of this convention and subsequent to that date shall be determined by a jurist who shall not be an American citizen or a British subject.

(c) Other details.

2. A convention providing:

(a) That there shall be submitted for final determination to a jurist who shall not be an American citizen or a British subject the questions defined below:

i. Has injury in the State of Washington resulted from the operation of the smelter at Trail?

ii. If injury in the State of Washington has resulted from the operation of the smelter

(A) has the smelter ceased to cause injury, and

(B) shall the smelter be required to refrain from causing injury in the future?

iii. If part (B) of the second inquiry is answered in the affirmative, what is the maximum frequency, duration and concentration of sulphur dioxide visitations which can be permitted in the State of Washington, without causing injury?

iv. What indemnity shall be paid for the damage occurring prior to the date the convention becomes effective and subsequent to that date?

v. Other details.

3. A convention providing:

(a) That the sum of $350,000 shall be paid for damage occurring prior to January 1, 1932.

(b) That there shall be submitted for final determination to a jurist who shall not be an American citizen or a British subject questions defined below:

i. (A) Has the smelter ceased to cause injury in the State of Washington since January 1, 1932?

(B) Shall the smelter be required to refrain from causing injury in the future?

ii. If part (B) of the first inquiry is answered in the affirmative, what is the maximum frequency, duration and concentration of sulphur dioxide visitations which can be permitted in the State of Washington, without causing injury?

iii. What indemnity shall be paid for damage occurring after January 1, 1932?

iv. Other details.

It will be observed that the first proposal fixes a maximum concentration of sulphur dioxide which shall be permitted in the State of Washington and leaves open for final determination by an impartial jurist the entire question of indemnification. The second proposal leaves open the questions whether damages have occurred and are occurring, whether the nuisance shall be abated, what concentration of sulphur dioxide shall be permitted and what indemnification shall be paid. The third proposal fixes an indemnity for damage which occurred prior to January 1, 1932, and leaves for determination by an impartial jurist the questions whether the smelter has ceased to cause injury subsequent to January 1, 1932, whether the smelter shall be required to refrain from causing injury, what concentration of sulphur dioxide shall be permitted and what indemnity shall be paid for injury occurring subsequent to January 1, 1932.

In proposing that rights of American interests under the laws of the United States be submitted to an international adjudication, this Government is making a concession to Canadian interests.

Canadian interests have for a number of years been trespassing on the territory of the United States and on personal and property rights in the State of Washington. The Canadian interests seem to desire to continue so to trespass. The two Governments have been engaged in endeavoring to adjust the problem presented by this situation.

Acute, chronic, cumulative and permanent injury has been caused and is now being caused in the State of Washington by the presence of sulphur dioxide in the air.

The discharge of sulphur dioxide from the smelter at Trail of the Consolidated Mining and Smelting Company in such quantities and at such rates as to cause pollution of the air in the State of Washington has been at all times and is now wrongful. It ought of right to cease.

I call on the Canadian Government to cause cessation of the pollution of the air and to cause adequate indemnification for all damage.

I feel that in the circumstances it is not too much to hope that the Canadian Government will seriously and sympathetically consider the proposals which I have offered looking to a solution of the problem, the position which I have asserted, and the request I have hereby made of the Canadian Government.

Please communicate the foregoing in writing to the Department of External Affairs of Canada,³³ requesting an early reply. It is desired that the Legation follow its note to the Department of External Affairs with oral inquiry at short intervals.

Very truly yours,

Cordell Hull

26. Ibid., p. 62.
27. Not printed; it was based on instruction No. 841, February 10, 1933, to the Chargé in Canada, ibid., p. 52.
27. Trail Smelter Question, Documents, Series A, Appendix A 3: Report of the International Joint Commission, signed at Toronto, 28th February, 1931 (Ottawa, J. O. Patenaude, I. S. O., 1936).
28. Foreign Relations, 1910, p. 532.
29. See telegram No. 108, August 7, 1928, to the Chargé in Canada, ibid., 1928, vol. ii, p. 97.
30. Foreign Relations, 1907, pt. 2, p. 1181.
31. Ibid., 1920, vol. i, p. 18.
32. Foreign Relations, 1923, vol. ii, p. 626.
33. Communicated as note No. 172, January 30, 1934.