711.4215 Air Pollution/559½
Memorandum by Mr. Jacob A. Metzger of the Office of the Legal Adviser51
I arrived at Spokane, Washington, Monday night, September 17. Mr. John T. Raftis, who represents a large number of the complainants against the Consolidated Mining and Smelting Company, met me at Spokane on the 18th. Mr. Raftis and I canvassed various phases of the problem which exists in Stevens County by reason of the presence of sulphur dioxide from the Smelter at Trail, British Columbia. Special discussion was had of the matter of accepting $350,000 as payment of damages to January 1, 1932. Mr. Raftis said that, under no circumstances, could he acquiesce in the acceptance of $350,000, thereby closing all question of damage prior to January 1, 1932.
Mr. Raftis said that he was aware that, in difficult and complicated matters between governments such as the one with which we are dealing, it was necessary to give and take. He said, however, that, in tolerating the nuisance for a period of ten years, the people of Stevens County had yielded enough and they should not be expected to make concessions in the matter of the remedy. He said that this was especially true since the formula now under discussion by representatives of the two Governments would admit of a tribunal deciding that the nuisance which has been maintained by the Smelter should be permitted to continue.
Mr. Raftis summarized his position by saying that he could not acquiesce in the acceptance of the $350,000, with the consequences which such acceptance entailed, for two reasons: (1) that to do so would be grossly unjust to the complainants, and (2) that, if he were to acquiesce in such a plan, he would lose his law practice, and he felt that he would deserve to lose it.
[Page 947]In closing our conversation, it was understood that Mr. Raftis would be available should it be desirable to bring him into the conversations with the Canadians. In leaving, Mr. Raftis cautioned me not to allow myself to be stampeded into accepting an unfair and unjust arrangement.
On the night of the same day that I met Mr. Raftis, September 18, I had a short conversation with Mr. Read of the Canadian Department of External Affairs. Mr. Read is the Canadian official with whom I have been discussing this matter for several years. Mr. Read opened the conversation by saying that the draft of proposed agreement which he submitted to me under date of June 22 was the first draft which had been formulated that his Government was willing to adopt. He said that he felt that the suggestions which had emanated from our side were unfair to Canadian interests; that they had not been impressed by some of our statements in regard to the case; that the claims of the complainants were exorbitant, and that anyway it was their position that the Smelter was no longer causing damage in Washington.
To Mr. Read’s remarks I responded that I thought we had tolerated with a great deal of patience the continuance of a nuisance for so many years; that we felt that the suggestions which we had made looking to a settlement were exceedingly fair and that we had gone as far in that direction as we could go without imposing further injustice on United States interests; that I felt that, for reasons which I desired to state to him, proposals contained in the last Canadian draft were unfair to United States interests and that it was quite clear from what had already taken place that we would not be able to agree on the extent to which damage had occurred in the past or on arrangements for the future, and that the only way forward would be to submit all relevant questions to an impartial tribunal.
With special reference to his observation that proposals emanating from our side were unfair to Canadian interests, I observed that we had tried to make it clear from the beginning that we were willing to submit to an impartial tribunal any relevant question that could possibly be raised in connection with this case and that I could not see how a proposal that the entire matter be submitted for impartial determination could possibly be unfair to an admitted wrongdoer. I pointed out that the only injustice suffered so far has been that inflicted on United States interests. I observed further that the fairest thing that could now be done would be to provide a remedy in which every affirmative contention relevant to the matter and every relevant defense also could be advanced, considered and decided. I told Mr. Read that we sought no advantage over the Canadians. We had no [Page 948] desire to win the case in the agreement, but on the other hand we were unwilling to sacrifice the case in the agreement.
Mr. Read stated that, even if an agreement which would be satisfactory to us were concluded, they would have no assurance that we on our side would abide by the decision, and he mentioned in support of this statement the fact that we had rejected the report of the International Joint Commission. I told him that the assurance which they would have that we would accept the decision would be the commitment to accept it which would be included in the agreement, and I emphasized again that the report of the International Joint Commission was merely advisory and that there was no obligation on the part of either side to accept it and that the article of the treaty under which the case was referred to the Commission expressly provided that the report of the Commission should not have the effect of a decision. He agreed that it had no binding effect.
I explained to Mr. Read that, while I was not prepared to recommend the acceptance of the $350,000 with the consequences which such acceptance entailed, I would like to analyze with him the various provisions of the last Canadian proposal in order that I might understand clearly the significance of some of the provisions and his position in regard to all of them. I told him also that I desired that he understand clearly my position and hoped that, by analyzing and discussing the provisions of the Canadian draft, we might come to an accord on everything but the $350,000, leaving that as the sole question for later decision. We separated on the night of the 18th with the understanding that we would get together on the morning of the 19th and analyze and discuss the provisions of the Canadian draft.
We met on the morning of the 19th, as arranged, and discussed Articles I, III, and X of the Canadian draft at considerable length. These Articles are quoted below:
“Article I
“The Government of Canada will cause to be paid to the Secretary of State of the United States, to be deposited in the United States Treasury, within three months after ratifications of this Convention have been exchanged, the sum of three hundred and fifty thousand dollars, United States currency, in payment of all damage which occurred in the United States, prior to the first day of January, 1932, as a result of the operation of the Trail Smelter.”
“Article III
“The Tribunal shall finally decide the questions, hereinafter referred to as ‘the Questions’, set forth hereunder, namely:—
- “(1) Whether the Trail Smelter has caused damage to property in the State of Washington since the first day of January, 1932, and, if so, what indemnity should be paid therefor.
- “(2) In the event that the answer to the preceding Question is in the affirmative, whether the Trail Smelter should be required to refrain from causing damage to property in the State of Washington in the future and, if so, to what extent.
- “(3) In the light of the answer to the preceding Question, what measures or regime, if any, should be adopted in order to prevent the Trail Smelter from causing damage to property in the State of Washington in the future, to the extent determined in such answer?”
“Article X
“The Tribunal, in determining the first question and in deciding upon the indemnity, if any, which should be paid in respect to the years 1932, 1933 and 1934, up to and including the time when investigators on behalf of the Government of Canada were permitted to examine properties claimed to have been damaged, shall have regard to the fact that no complaints were made to the Consolidated Mining and Smelting Company in respect to damage claimed to have been caused within that period of time and that representatives of the Company were not permitted to enter and view the property in respect to which damage is now claimed to have been caused. The Tribunal shall not, by reason of such fact, reject such complaints but, in considering them, shall give due regard to the results of investigations and inquiries made in respect to such properties and others subsequent to the time when investigators on behalf of the Government of Canada have been permitted to view such properties.
“Investigators, whether appointed by or on behalf of the Governments, either jointly or severally, or the Tribunal, shall be permitted at all reasonable times to enter and view and carry on investigations upon any of the properties upon which damage is claimed to have occurred or to be occurring, and their reports may, either jointly or severally, be submitted to and received by the Tribunal for the purpose of enabling the Tribunal to decide upon any of the Questions, as well as for the purpose of enabling claims to be dealt with for damage occurring prior to the time when the investigation on behalf of the Government of Canada was permitted.”
Mr. Read stated that the Prime Minister, Doctor Skelton, who is Deputy Minister of External Affairs, and the Smelter people were very firm in insisting that $350,000 be paid and accepted in accordance with Article I. I stated to Mr. Read that I understood that the reason why the Canadians insisted on this provision was that the amount had been recommended by the International Joint Commission. I asked him if there were any other reasons. He urged no consideration in support of the Canadian position on this Article except that it carried out the recommendations of the Joint Commission.
I explained to Mr. Read that there were two vital objections to the first numbered paragraph of Article III. I stated that the three paragraphs in Article III defined the questions which the tribunal was to consider and decide and that the tribunal would be obliged to [Page 950] observe the restrictions contained in the language of those three paragraphs. The objection to the first numbered paragraph was that the tribunal was to consider whether damage had been “caused” since January 1, 1932, and whether damage was caused “to property” since January 1, 1932. I illustrated the objection to the word “caused” by taking the case of a tree which had been exposed to fumigation of sulphur dioxide prior to January 1, 1932, but had been sufficiently vigorous to keep alive until after January 1, 1932, when, by reason of the accumulation of the effect of fumigations prior to that date and subsequent to that date, the tree would finally die.
There is no doubt that just such a situation exists not only with respect to trees but with respect to other vegetation, especially hay, which is the principal crop raised in that region. This illustrates that damage was caused prior to January 1, 1932, but occurred subsequent to January 1, 1932, and it reveals also that if the word “caused” in its present setting were used, it would be necessary to prove what part of the damage was caused prior to January 1, 1932, and what part was caused subsequent to January 1, 1932, which it would be impossible to do. I explained that, because of the necessity which would be created by the language of the first paragraph of Article III to determine whether damage was caused prior or subsequent to January 1, 1932, and because of the impossibility of proving precisely when damage was caused, a tribunal might find itself in a position of being unable to decide the question submitted to it—therefore, the arbitration might fail.
I pointed out also that the Commission had recommended the payment of $350,000 in payment of damage which occurred prior to January 1, 1932, and that the formula proposed by the Canadians would exclude in large measure damage which occurred subsequent to January 1, 1932, from consideration by the tribunal, leaving that type of damage wholly unprovided for. I emphasized that it was unfair to exclude from the consideration of the tribunal damage which occurred subsequent to January 1, 1932, when the proposed payment of $350,000 was to cover damage which occurred prior to January 1, 1932. If the question of damage which occurred prior to January 1, 1932, were to be completely closed by the payment of $350,000, then the question of damage which occurred subsequent to January 1, 1932, should be left for consideration by the tribunal. Otherwise, there would be a field of damage which was not dealt with in the $350,000 settlement or in the submission to the tribunal.
I pointed out to Mr. Read also that the effect of the sulphur on a large area of land in Stevens County, Washington, has been such that, if the presence of sulphur were entirely to disappear today, it would be many years before the territory would recover from the effects of [Page 951] previous fumigations. I stated that, if the Smelter had entirely closed on January 1, 1932, damage would occur for many years after that date. If the Canadian formula were adopted, no recovery could be had for the damage which occurred subsequent to January 1, 1932, from causes which were brought to bear prior to that date.
With respect to limiting the tribunal to considering only damage to property, I observed that the only purpose in establishing that limitation would be to exclude other types of damage from consideration of the tribunal. If there were no other types of damage, there would be no occasion to establish such a limitation; if there are other types of damage, then the tribunal ought to be authorized to consider them.
Mr. Read readily agreed to such changes in the phraseology of the first numbered paragraph of Article III as were necessary to meet my objections to the paragraph.
We discussed the second and third numbered paragraphs of Article III with a view to developing clearly what their meaning would be if they were adopted. We had no difficulty in concurring in the view that, if paragraphs two and three of Article III were adopted, the tribunal would have very broad powers in fixing a régime for the future. The tribunal could decide that, in the future, no sulphur dioxide should be permitted to enter the State of Washington. It could, on the other hand, decide that sulphur dioxide could be discharged from the Smelter and allowed to enter the State of Washington without any restriction whatever; or the tribunal could decide that there should be a measure of tolerance in the State of Washington and could fix a line beyond which there should be no sulphur dioxide.
I explained to Mr. Read that paragraphs two and three taken together would practically give the tribunal power to condemn land in the State of Washington, but that there was nothing in the agreement which would authorize the tribunal to award indemnity coextensive with the powers conferred on it in the matter of condemning the land to the use of the Smelter. I pointed out that the only express authority to award damages was that contained in the first paragraph of Article III, which it is not believed would authorize the awarding of damages in a period subsequent to the decision of the tribunal. I felt that this matter was of such large importance that there ought to be specific provision on it. Mr. Read assented to this view.
We then took up Article X of the Canadian draft. I pointed out that this Article as drafted would entail an admission on our part that the complainants had not made complaints to the Smelter in the years 1932, 1933, and 1934, and an admission that the complainants refused to permit representatives of the Company to enter their property. It would further entail an admission that these points were relevant. [Page 952] I stated to Mr. Read that I felt that the tribunal should be authorized to receive and consider evidence on any relevant point and that, without any special provision, the tribunal would be authorized to receive evidence on the questions whether the complainants complained to the Smelter and whether they refused to permit them to enter their property, if the tribunal considered those points relevant. I stated further that, although I believed a special provision on this subject unnecessary, I would have no objection to including a provision if it were changed in such a way as not to entail an admission of the allegations or the relevancy of them. I told Mr. Read that I felt a provision such as that contained in the first paragraph of Article X would be unfortunate because it would bring into question the conduct of the complainants and the conduct of the representatives of the Smelter, which would introduce an element of bitterness which it would be well not to do. I stated that a case of this kind necessarily results in bitterness of feeling which it is desirable but difficult to keep in the background, and that a provision such as the Canadians proposed would bring these bitter phases of the controversy into prominence. I told him, however, that if they desire to insist on such a provision, I would have no objection to it if the language were revised in such way as to entail no admission of the allegations or of the relevancy of them.
With respect to the second paragraph of Article X, which would provide that investigators appointed by the Governments or by the tribunal should be permitted to enter the property of complainants to carry on investigations, I stated that I felt that the Government of the United States ought not to undertake to compel property owners to admit to their property persons whom they are unwilling to admit. I stated I thought that this would change rights of property which it was not necessary to do. Such a provision would doubtless be offensive to property owners who have already endured trespass for many years. Mr. Read indicated that he thought my objections to Article X could be met.
When Mr. Read and I finished our discussions of the objectionable provisions of the Canadian draft, Mr. Read said that he would like to have Mr. Crowe, attorney for the Smelter, join us and to explain to Mr. Crowe the objections which I had made to their draft. Mr. Crowe was then invited to join us and Mr. Read explained the objections which I had raised and how we had agreed that they might be overcome. Mr. Crowe said he would submit the matter to his principals and would confer with Mr. Read later as to what their attitude would be. It should be stated that Mr. Warren, President of the Consolidated Mining and Smelting Company, Mr. Blaylock, Vice President and General Manager of the Company, Mr. Campbell, Vice President [Page 953] and General Manager of the West Kootenay Power and Light Company, a subsidiary of the Consolidated, and Mr. Crowe, attorney for both Companies, were present at Spokane.
On the afternoon of September 19 Mr. Read asked me to come to his room. He then told me of the attitude of the representatives of the Consolidated. He stated that he thought there would be no difficulty in having the limitation contained in the first paragraph of Article III, with reference to damage to property, deleted, and that there would be no difficulty about the first paragraph of Article X, which provided that the tribunal should consider the failure of the complainants to report damage to the Company and their unwillingness to allow representatives of the Company to enter their property. He said, however, that the President of the Company was insistent on the retention of the word “caused” in the first paragraph of Article III and on the retention of the second paragraph of Article X, which would require the United States to compel property owners to receive investigators designated by the Canadian Government.
He said further that although the draft had been approved by representatives of the Company before submission, the representatives had indicated that they were now unwilling to accept the provisions of paragraphs two and three of Article III, which would authorize the tribunal to impose limitations on the operations of the Company in the future. He said that all the Company was now willing to do was to have damages for 1932, 1933, and 1934 considered with the restrictions which were contained in the first paragraph of Article III, except the limitation to property.
I obtained the impression from Mr. Read’s statement that the representatives of the Company are now inclined to take the view that, prior to January 1, 1932, damage had become permanent and total and that, therefore, the Company, in consideration of the payment of $350,000, should be allowed, without restriction, to permit sulphur dioxide to enter the State of Washington.
Mr. Read indicated that he was disappointed at the attitude of the representatives of the Smelter but stated that he could see their viewpoint. He then observed that it would now be necessary for Mr. Robbins, the Minister at Ottawa, and Mr. Bennett, Prime Minister of Canada, to come to blows on the subject, and that it would be for Mr. Bennett to decide whether pressure was to be brought on the Company. He indicated that he thought the Government might be without authority to compel the Company to submit to a satisfactory arrangement and that it would probably be necessary to institute litigation to compel the Company to submit. I responded that it was clearly useless for him and me to continue to go around in circles.
[Page 954]Upon finishing my conversation with Mr. Read, I telephoned Mr. Raftis to come to Spokane. He came on the morning of Thursday, September 20, and I then conferred with Mr. Raftis and Congressman Sam B. Hill, who is in Spokane in the midst of a campaign for reelection. I explained to them that the Canadian Government and the Company were insistent that $350,000 be accepted in payment of damages to January 1, 1932; that the Company was unwilling to have a tribunal award damages except with the limitations contained in the use of the word “caused” as included in the first paragraph of Article III; and that the Company was now unwilling to have a tribunal consider and make any decision with respect to limitations on the operation of the Smelter in the future. Mr. Raftis stated that he thought that, in the light of developments, the only thing that could be done would be for the Government of the United States to demand the immediate suppression of the nuisance. Mr. Hill seemed to agree and indicated that he would write to the Department to that effect.
- This memorandum bears the following notation in ink initialed by the Legal Adviser: “It seems to me that the time has come when we shall have to take a rather firm position through our higher officials with the higher officials of Canada. G[reen] H. H[ackworth].”↩