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respectively, but not for export therefrom. (Export permitted by later acts infra.) [Before such sale shall take place, notice thereof shall be given
for not less than thirty days, by publication in one or more newspapers of general circulation, as he may deem necessary, in the
, State or Territory where such reservation exists: Provided, however, That in cases of unusual emergency the Secretary of the Interior may, in the exercise of his discretion, permit the purchase of timber and cord wood in advance of advertisement of sale at rates of value approved by him and subject to payment of the full amount of the highest bid resulting from the usual advertisement of sale: Provided further, That he may, in his discretion, sell without advertisement, in quantities to suit applicants, at a fair appraisement, timber and cord wood not exceeding in value one hundred dollars stumpage: And provided further, That in cases in which advertisement is had and no satisfactory bid is received, or in cases in which the bidder fails to complete the purchase, the timber may be sold, without further advertisement, at private sale, in the discretion of the Secretary of the Interior, at not less than the appraised valuation, in quantities to suit purchasers:]
Such timber before being sold, shall be marked and designated, and shall be cut and removed under the supervision of some person appointed for that purpose by the Secretary of the Interior, not interested in the purchase or removal of such timber nor in the employment of the purchaser thereof. Such supervisor shall make report in writing
of his doings in the premises.
(The matter in brackets in the above section is taken bodily from the act of June 6, 1900 (31 Stat., 661), and, since the passage of the agricultural appropriation act of June 30, 1906 (34 Stat., 669), is the timber sale law for all National Forests, except as modified by the act of Feb. 1, 1905 (33 Stat., 628), transferring the jurisdiction of the National Forests to the Secretary of Agriculture.) As to sale of timber to settlers and farmers at cost, see infra, p. 97. Free-use permits.
The Secretary of the Interior may permit, under regulations to be prescribed by him, the use of timber and stone found upon such reservations, free of charge, by bona fide settlers, miners, residents, and prospectors for minerals, for firewood, fencing, buildings, mining, prospecting, and other domestic purposes, as may be needed by such persons for such purposes; such timber to be used within the State or Territory, respectively, where such reservations may be located. Ingress and egress of settlers.
Nothing herein shall be construed as prohibiting the egress or ingress of actual settlers residing within the boundaries of such reservations, or from crossing the same to and from their property or homes; and such wagon roads and other improvements may be constructed thereon as may be necessary to reach their homes and to utilize their property under such_rules and regulations as may be prescribed by the Secretary of the Interior. Prospecting and location of mining claims.
Nor shall anything herein prohibit any person from entering upon such forest reservations for all proper and lawful purposes, includ
ing that of prospecting, locating, and developing the mineral re-
The settlers residing within the exterior boundaries of such forest
The jurisdiction, both civil and criminal, over persons within such reservations shall not be affected or changed by reason of the existence of such reservations, except so far as the punishment of offenses against the United States therein is concerned; the intent and meaning of this provision being that the State wherein any such reservation is situated shall not, by reason of the establishment thereof, lose its jurisdiction, nor the inhabitants thereof their rights and privileges as citizens, or be absolved from their duties as citizens of the State. Waters.
All waters on such reservations may be used for domestic, mining, milling, or irrigation purposes, under the laws of the State wherein such forest reservations are situated, or under the laws of the United States and the rules and regulations established thereunder. Restoration of certain lands to public domain.
Upon the recommendation of the Secretary of the Interior, with the approval of the President, after sixty days' notice thereof, published in two papers of general circulation in the State or Territory wherein any forest reservation is situated, and near the said reservation, any public lands embraced within the limits of any forest reservation, which, after due examination by personal inspection of a competent person appointed for that purpose by the Secretary of the Interior, shall be found better adapted for mining or for agricultural purposes than for forest usage, may be restored to the public domain. Location and entry of mineral lands.
And any mineral lands in any forest reservation which have been or which may be shown to be such, and subject to entry under the existing mining laws of the United States and the rules and regulations applying thereto, shall continue to be subject to such location and entry, notwithstanding any provisions herein contained.
Validity of rules and regulations of Secretary.
United States v. Grimaud et al., 220 U. S., 506 (syllabus). Under the acts establishing forest reservations, their use for grazing or other lawful purposes is subject to rules and regulations established by the Secretary of Agriculture, and it being impracticable for Congress to provide general regulations, that body acted within its
constitutional power in conferring power on the Secretary to establish such rules; the power so conferred being administrative and not legislative, is not an unconstitutional delegation.
While it is difficult to define the line which separates legislative power to make laws and administrative authority to make regulations, Congress may delegate power to fill up details where it has indicated its will in the statute, and it may make violations of such regulations punishable as indicated in the statute; and so held that regulations made by the Secretary of Agriculture as to grazing sheep on forest reserves have the force of law and that violations thereof are punishable under act of June 4, 1897, chapter 2 (30 Stat., 35), as prescribed in section 5388, Revised Statutes.
Congress can not delegate legislative power (Field v. Clark, 143 U. S., 692), but the authority to make administrative rules is not a delegation of legislative power, and such rules do not become legislation because violations thereof are punished as public offenses.
Even if there is no express act of Congress making it unlawful to graze sheep or cattle on a forest reserve, when Congress expressly provides that such reserves can only be used for lawful purposes subject to regulations and makes a violation of such regulations an offense, any existing implied license to graze is curtailed and qualified by Congress; and one violating the regulations when promulgated makes an unlawful use of the Government's property and becomes subject to the penalty imposed.
A provision in an act of Congress as to the use made of moneys received from Government property clearly indicates an authority to the executive officer authorized by statute to make regulations regarding the property to impose a charge for its use.
Where the penalty for violations of regulations to be made by an executive officer is prescribed by statute, the violation is not made a crime by such officer, but by Congress, and Congress and not such officer fixes the penalty, nor is the offense against such officer, but against the United States. (Same.)
Light v. United States, 220 U. S., 523 (syllabus). Congress may authorize an executive officer to make rules and regulations as to the use, occupancy, and preservation of forests, and such authority so granted is not unconstitutional as a delegation of legislative power. (Following United States v. Grimaud, 220 U. S., 506.)
At common law the owner was responsible for damage done by his live stock on land of third parties, but the United States has tacitly suffered its public domain to be used for cattle so long as such tacit consent was not canceled, but no vested rights have been conferred on any person, nor has the United States been deprived of the power of recalling such implied license.
While the full scope of section 3, Article IV, of the Constitution has never been definitely settled, it is primarily a grant of power to the United States of control over its property (Kansas v. Colorado, 206 U. S., 89); this control is exercised by Congress to the same extent that an individual can control his property.
It is for Congress and not for the courts to determine how the public lands shall be administered.
Congress has power to set apart portions of the public domain and establish them as forest reserves, and to prohibit the grazing of cattle thereon, or permit it subject to rules and regulations.
Fence laws may condone trespasses by straying cattle where the laws have not been complied with, but they do not authorize wanton or willful trespass, nor do they afford immunity to those willfully turning cattle loose under circumstances showing that they were intended to graze upon the lands of another.
Where cattle are turned loose under circumstances showing that the owner expects and intends that they shall go upon a reserve to graze thereon, for which he has no permit and he declines to apply for one, and threatens to resist efforts to have the cattle removed, and contends that he has a right to have his cattle go on the reservation, equity has jurisdiction, and such owner can be enjoined at the instance of the Government, whether the land has
been fenced or not. Quære, and not decided, whether the United States is required to fence property under laws of the State in which the property is located. Status of mining locations within forests.
Mineral lands (at least if not located as such at the time of withdrawal) become a part of the National Forest, and their subsequent location does not (prior to patent) withdraw or exclude them therefrom. (United States v. Rizzinelli, 182 Fed., 675; see also U. S. v. Lavenson, 206 Fed., 755.)
Under a forestry proclamation declaring “that the withdrawal made by this proclamation shall, as to all lands at this time legally appropriated * be subject to and shall not interfere with or defeat legal rights under such appropriation
so long as such appropriation is maintained," a mining location existing at the date of the proclamation becomes a part of the National Forest, subject only to the rights of the owner thereof, under the mineral laws. (2 Sol. Op., 763; id., 865.) Status of lands covered by rights of way.
Lands covered by railroad and ditch rights of way at the time of withdrawal become part of the National Forests subject to such rights of way. (2 Sol. Op., 790; id., 728.) Waters within National Forests.
Waters flowing over the public domain in natural channels are not the property of the United States or subject to its control or disposition. They are publici juris and are subject, under the Constitution, to the jurisdiction and control of the States, except for purposes of commerce and navigation. The Government can acquire a right to their use for purposes other than navigation only by appropriating them under the provisions of State laws. (1 Sol. Op., 590.)
Where, however, the Government, by a treaty made prior to the admission of the State into the Union, has reserved certain waters for the use of an Indian tribe, there is no power in the State to divert them from such uses. (Winters v. United States, 207 U. S., 564.)
Nor can a State, even upon the nonnavigable portions of a stream, authorize any uses which will impair the navigability of the navi
gable portions. (United States v. Rio Grande Irrigation Co., 174 U. S., 690.)
The waters of mineral, medicinal, and saline springs on the public domain are under the sole control of the United States, as a landowner, and are not subject to appropriation under State laws or to the riparian right to continued flow. (2 Sol. Op., 951.) Fish and game within forests.
While it is no doubt within the power of Congress to prevent intrusion upon the National Forests for the purposes of taking fish and game, yet in view of the long-established policy by which the public domain has been opened for these purposes it can not be held that the general powers conferred upon the Secretary of Agriculture by the forest administrative act of June 4, 1897, or any other legislation empowers him to prohibit or to make regulations in relation to the taking of fish and game on the National Forests. (23 Op. Atty. Gen., 589; 1 Sol. Op., 78 and 174.)
The fish and game laws of the States and Territories are applicable to National Forest lands and to persons other than Indians on Indian reservations, but not to Indians upon their reservations. (1 Sol. Op., 201; Ex parte Crosby, 149 Pac., 989.)
Forest officers may be authorized by the Secretary of Agriculture to exterminate predatory animals on National Forest lands when necessary to conserve the purposes for which the National Forests were created, and the States have no power to deprive the Secretary of this authority. But a forest official, by virtue of his employment in the Forest Service, does not have any rights whatsoever to engage in trapping or hunting in violation of the State game laws where carried on for his own amusement or profit. (Sol. Op., Feb. 12, 1915.)
LEGISLATION AFFECTING CERTAIN NATIONAL FORESTS.
Act of October 1, 1890 (26 Stat., 650), setting aside certain lands in California as forest reservations.
Act of February 7, 1905 (33 Stat., 702), to exclude from Yosemite National Park certain lands and attach the same to the Sierra Forest Reserve.
Joint resolution of June 11, 1906 (34 Stat., 831), accepting recession of Yosemite Valley, etc., and changing boundaries of the National Park.
Act of April 28, 1904 (33 Stat., 526), replaced by section 55 of the Penal Code. (See Trespass, p. 109, post.)
Act of May 23, 1908 (35. Stat., 268), establishing the Minnesota National Forest and containing various special provisions in relation to sales of timber, the preservation of seed trees, the preservation and adjustment of the rights of Indians, etc. See also act of June 27, 1902 (32 Stat., 400).
Act of June 25, 1910 (36 Stat., 855), relating to Indian lands, proviso near bottom of page 862.
The Indian appropriation act of March 3, 1905 (33 Stat., 1048 at p. 1070), authorizes the President to add parts of the Uinta Indian Reservation to the Uinta National Forest.