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The Forest Service is not authorized to sell fire-killed timber upon homesteads, or to enter into an agreement with homesteaders to sell the timber to purchasers and deposit the proceeds in the Treasury to be refunded upon the patenting of the claim. (1 Sol. Op., 327.)

There is no authority to make an agreement permitting an assignee of the Northern Pacific Railroad Co. to cut over lands covered by an unperfected selection under the act of March 2, 1899 (30 Stat., 993), at his own risk, upon filing a bond to indemnify the Government should such selection fail. (1 Sol. Op., 463.)

Neither the Northern Pacific Railroad Co. nor the Forest Service, nor the two acting together under agreement, can legally dispose of timber upon unsurveyed, unclassified, odd sections within the primary limits of the railroad grant. (1 Sol. Op., 327.)

A mining claim properly marked upon the ground is presumed to be valid until its validity is determined by the Interior Department in a proper proceeding and the Forest Service can not sell timber from such a claim merely because it appears to the Forest Service to be invalid. (1 Sol. Op., 181.)

If mining locations within National Forests have been abandoned, even though the boundaries thereof are still plainly marked, the Forest Service may properly sell the timber thereon. (2 Sol., Op. 1110.) Free-use permits.

The provisions of the act of June 4, 1897 (30 Stat., 11), do not authorize the issuance of a free-use permit to the State of Montana for timber to construct a State building. (Sol. Op., May 26, 1913.)

The free-use provisions of the act of June 4, 1897 (30 Stat., 11), do not authorize the issuance of free-use permits for fire wood to be used in county courthouses or county high schools. (Sol. Op., June 30, 1915.)

By the free-use provisions contained in the act of June 4, 1897 (30 Stat., 11), Congress intended to provide for the granting of tiniber free of charge to persons who, in their individual capacities, wish to secure National Forest timber for the establishment or maintenance of their individual property, claims, or possessory rights within or near the forests. (Sol. Op., Nov. 5, 1915.)

A free-use permit (Form 874–8) for the taking of timber from National Forest lands constitutes an executory contract between the Government and the permittee for the taking of the timber after it has been severed from the soil, or has been reduced to the possession of the permittee, together with a license to enter upon National Forest lands for the purpose of cutting and removing it. (2 Sol. Op., 1076.)

Where clause 2 of the form (Permit) has been waived, the license thus created to enter and take the timber covered by such free-use permit is irrevocable as to that portion of the timber which has been severed from the soil, or which being dead and down has been reduced to the possession of the permittee in the form of personal property answering the description in the permit, but is revocable while it remains executory, or as to that portion of the timber which had not been severed from the soil or reduced to the possession of the permittee. (2 Sol. Op., 1076.)

GRAZING.

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There are no statutes specifically relating to grazing upon the National Forests. The grazing regulations are based on the provision in the act of June 4, 1897 (30 Stat., 11, 35), which reads as follows:

“ The Secretary of the Interior shall make provisions for the protection against destruction by fire and depredations upon the public forests and forest reservations which may have been set aside or which may be hereafter set aside under the said act of March third, eighteen hundred and ninety-one, and which may be continued; and he may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction; and any violation of the provisions of this act or such rules and regulations shall be punished as is provided for in the act of June fourth, eighteen hundred and eighty-eight, amending section fifty-three hundred and eighty-eight of the Revised Statutes of the United States."

DECISIONS.

The Secretary of Agriculture has the authority to make a charge for the use of lands in a National Forest for grazing. (United States v. Grimaud et al., 220 U.S., 506, 522.)

The usual grazing permit constitutes merely a license revocable at the discretion of the Secretary of Agriculture. (2 Sol. Op., 895.)

A person who has secured a waiver of grazing privileges in his favor can not rely on the prior issuance of a permit to the person from whom he purchased as creatng an estoppel aganst the Government to cancel the permit, there being no mutuality between the Government and such transferee. (Id.)

The Forest Service may collect the usual kidding or lambing charge for kidding or lambing on an unperfected mining claim within a National Forest where the claimant waives his right to exclusive possession under the mining laws. (2 Sol. Op., 865.)

For decisions relating to grazing trespasses, see " Trespass, grazing,” post,

p. 116.

TRESPASSES.

National Forest rules and regulations.

Act of June 4, 1897 (30 Stat., 11). The Secretary of the Interior shall make provisions for the protection against destruction by fire and depredations upon the public forests and forest reservations which may have been set aside or which may be hereafter set aside under the said act of March third, eighteen hundred and ninety-one, and which may be continued ; and he may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction; and any violation of the provisions of this act or such rules and regulations shall be punished as is provided for in the act of June fourth, eighteen hundred and eighty-eight, amending section fifty

three hundred and eighty-eight of the Revised Statutes of the United States.

NOTE.—The statutes referred to in the closing lines of the above act were both expressly repealed in the revised criminal code of 1909. The amending act (25 Stat., 166) is, however, printed next below. For effect of repeal, see U. S. v. Gibson, “Decisions," infra, page 111.

Penalty for violation of regulations

Act of June 4, 1888 (25 Stat., 166). Section fifty-three hundred and eighty-eight of the Revised Statutes of the United States be amended so as to read as follows: “Every person who unlawfully cuts, or aids or is employed in unlawfully cutting, or wantonly destroys or procures to be wantonly. destroyed, any timber standing upon the land of the United States which, in pursuance of law, may be reserved or purchased for military or other purposes, or upon any Indian reservation, or lands belonging to or occupied by any tribe of Indians under authority of the United States, shall pay a fine of not more than five hundred dollars or be imprisoned not more than twelve months, or both, in the discretion of the court."

TIMBER TRESPASSES.

Criminal Code of March 4, 1909 (36 Stat., 1088, 1098). SEC. 49. Whoever shall cut, or cause or procure to be cut, or shall wantonly destroy, or cause to be wantonly destroyed, any timber growing on the public lands of the United States; or whoever shall remove, or cause to be removed, any timber from said public lands, with intent to export or to dispose of the same; or whoever, being the owner, master, or consignee of any vessel, or the owner, director, or agent of any railroad, shall knowingly transport any timber so cut or removed from said lands, or lumber manufactured therefrom, shall be fined not more than one thousand dollars, or imprisoned not more than one year, or both. Nothing in this section shall prevent any miner or agriculturist from clearing his land in the ordinary working of his mining claim, or in the preparation of his farm for tillage, or from taking the timber necessary to support his improvements, or the taking of timber for the use of the United States. And nothing in this section shall interfere with or take away any right or privilege under any existing law of the United States to cut or remove timber from any public lands.

Sec. 50. Whoever shall unlawfully cut, or aid in unlawfully cutting, or shall wantonly injure or destroy, or procure to be wantonly injured or destroyed, any tree, growing, standing, or being upon any land of the United States which, in pursuance of law, has been reserved or purchased by the United States for any public use, or upon any Indian reservation, or lands belonging to or occupied by any tribe of Indians under the authority of the United States, or any Indian allotment while the title to the same shall be held in trust by the Government, or while the same shall remain inalienable by the allottee without the consent of the United States, shall be fined not more than five hundred dollars, or imprisoned not more than one year, or both. (As amended by act June 25, 1910, 36 Stat., 855, 857.)

Sec. 51. Whoever shall cut, chip, chop, or box any tree upon any lands belonging to the United States, or upon any lands covered by or embraced in any unperfected settlement, application, filing, entry, selection, or location, made under any law of the United States, for the purpose of obtaining from such tree any pitch, turpentine, or other substance, or shall knowingly encourage, cause, procure, or aid in the cutting, chipping, chopping, or boxing of any such tree, or shall buy, trade for, or in any manner acquire any pitch, turpentine, or other substance, or any article or commodity made from any such pitch, turpentine, or other substance, when he has knowledge that the same has been so unlawfully obtained from such trees, shall be fined not more than five hundred dollars, or imprisoned not more than one

year, or both.

Cutting of timber on mineral lands.

Act of June 3, 1878 (20 Stat., 88). [This act applies only to unreserved land not within National Forests.] Sec. 1. All citizens of the United States and other persons, bona fide residents of the State of Colorado, or Nevada, or either of the Territories of New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, or Montana, and all other mineral districts of the United States, shall be, and are hereby, authorized and permitted to fell and remove, for building, agricultural, mining, or other domestic purposes, any timber or other trees growing or being on the public lands, said lands being mineral, and not subject to entry, under existing laws of the United States, except for mineral entry, in either of said States, Territories, or districts of which such citizens or persons may be at the time bona fide residents, subject to such rules and regulations as the Secretary of the Interior may prescribe for the protection of the timber and of the undergrowth growing upon such lands, and for other purposes: Provided, The provisions of this act shall not extend to railroad corporations.

NOTE.—By virtue of power granted to the Secretary of the Interior under act of June 3, 1878 (20 Stat., 88), said Secretary provides, in his “rules and regulations governing the use of timber on the public mineral lands,” (29 L. D., 571):

Sec. 9. Persons felling or removing timber under the provisions of this act must utilize all of each tree cut that can be profitably used, and must dispose of the tops, brush, and other refuse in such manner as to prevent the spread of forest fires." Duty of land officers.

Sec. 2. It shall be the duty of the register and the receiver of any local land office in whose district any mineral land may be situated to ascertain from time to time whether any timber is being cut or used upon any such lands, except for the purposes authorized by this act, within their respective land districts; and, if so, they shall immediately notify the Commissioner of the General Land Office of that fact; and all necessary expenses incurred in making such proper examinations shall be paid and allowed such register and receiver in making up their next quarterly accounts. Penalty.

Sec. 3. Any person or persons who shall violate the provisions of this act, or any rules and regulations in pursuance thereof made by the Secretary of the Interior, shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined in any sum not exceeding five hundred dollars, and to which may be added imprisonment for any term not exceeding six months. Cutting of timber for agricultural, etc., uses. Act March 3, 1891 (26 Stat., 1093), amending section 8 of the act to repeal the

timber culture laws. Sec. 8.

And in the States of Colorado, Montana, Idaho, North Dakota, and South Dakota, Wyoming, and the District of Alaska, and the gold and silver regions of Nevada and the Territory of Utah in any criminal prosecution or civil action by the United States for a trespass on such public timber lands or to recover timber or lumber cut thereon it shall be a defense if the defendant shall show that the said timber was so cut or removed from the timberlands for use in such State or Territory by a resident thereof for agricultural, mining, manufacturing, or domestic purposes under rules and regulations made and prescribed by the Secretary of the Interior and has not been transported out of the same, but nothing herein contained shall operate to enlarge the rights of any railway company to cut timber on the public domain, provided that the Secretary of the Interior may make suitable rules and regulations to carry out the provisions of this act, and he may designate the sections or tracts of land where timber may be cut, and it shall not be lawful to cut or remove any timber except as may be prescribed by such rules and regulations, but this act shall not operate to repeal the act of June third, eighteen hundred and seventy-eight, providing for the cutting of timber on mineral lands.

The above act was extended to New Mexico and Arizona by the amending act of February 13, 1893 (27 Stat., 444), and to California, Oregon, and Washington by the amending act of March 3, 1901 (31 Stat., 1436).

FIRE TRESPASSES.

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Criminal Code of March 4, 1909 (36 Stat., 1088, 1098, and 1099). Sec. 52. Whoever shall willfully set on fire, or cause to be set on fire, any timber, underbrush, or grass upon the public domain, or shall leave or suffer fire to burn unattended near any timber or other inflammable material, shall be fined not more than five thousand dollars, or imprisoned not more than two years, or both.

SEC. 53. Whoever shall build a fire in or near any forest, timber, or other inflammable material upon the public domain, or upon any Indian reservation, or lands belonging to or occupied by any tribe of Indians under the authority of the United States, or upon any Indian allotment while the title to the same shall be held in trust by the Government, or while the same shall remain inalienable by the allottee without the consent of the United States, shall before leaving said fire, totally extinguish the same; and whoever shall fail to do so shall be fined not more than one thousand dollars, or imprisoned not more than one year, or both. (As amended by act June 25, 1910, 36 Stat., 855,557.)

SEC. 54. In all cases arising under the two preceding sections the fines collected shall be paid into the public school fund of the county in which the lands where the offense was committed are situated.

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