such other method as he may deem advisable in the interest of equal opportunity and good administration, and in doing so may provide that lands so opened shall be subject only to homestead entry by actual settlers only or to entry under the desert-land laws for a period not exceeding ninety days, the unentered lands to be thereafter subject to disposition under the public-land laws applicable thereto. Extended to previous restorations.

SEC. 2. That where under the law the Secretary of the Interior is authorized or directed to make restoration of lands previously withdrawn he may also restrict the restoration as prescribed in section one of this Act.

SILVICULTURE.

TIMBER SALES.

Timber sales provisions of act of June 4, 1897 (30 Stat., 11, 35), as amended by act June 6, 1900 (31 Stat., 661).

Appraisal and sale.

For the purpose of preserving the living and growing timber and promoting the younger growth on forest reservations, the Secretary of the Interior, under such rules and regulations as he shall prescribe, may cause to be designated and appraised so much of the dead, matured, or large growth of trees found upon such forest reservations as may be compatible with the utilization of the forests thereon, and may sell the same for not less than the appraised value in such quantities to each purchaser as he shall prescribe, to be used in the State or Territory in which such timber reservation may be situated, respectively; but not for export therefrom.1

Advertisement.

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2 [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 sales 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: And provided further, That the provisions of this act shall not apply to existing forest reservations in the State of

1 Modified by agricultural appropriation act of Mar. 4, 1915 (39 Stat., 1096), printed next following.

2 The matter in brackets is taken bodily from the act of June 6, 1900 (31 Stat., 661), which amends the original act by substituting this language.

California, or to reservations that may be hereafter created within said State].1

Export of timber.

* * * 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.

Cutting and removal.

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Act of March 4, 1915 (38 Stat., 1096).

And the Secretary of Agriculture may, in his discretion, permit timber and other forest products cut or removed from the National Forests to be exported from the State or Territory in which said forests are respectively situated.

Sales of timber to settlers and farmers.

Act of August 10, 1912 (37 Stat., 269).

That the Secretary of Agriculture, under such rules and regulations as he shall establish, is hereby authorized and directed to sell at actual cost, to homestead settlers and farmers, for their domestic use, the mature, dead, and down timber in national forests, but it is not the intent of this provision to restrict the authority of the Secretary of Agriculture to permit the free use of timber as provided in the Act of June fourth, eighteen hundred and ninety-seven.

The act of June 3, 1878 (20 Stat., 88), authorizing the citizens of Colorado, Nevada, New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, and Montana, and "all other mineral districts of the United States" to fell and remove timber on the public domain for mining and domestic purposes, is printed on page 104, post, under "Trespass.

Timber sales in California.

Act of June 30, 1906 (34 Stat., 669).

99

[684] Hereafter sales of timber on forest reserves in the State of California shall in every respect conform to the law governing such sales in other States, as set forth in the act of June sixth, nineteen hundred (Thirty-first Statutes at Large, page six hundred and sixtyone).

Timber sales, Minnesota National Forest.

For timber sale provisions relating especially to the Minnesota National Forest see section 2 of the act of May 23, 1908 (35 Stat., 268).

Free use of timber and stone.

FREE-USE PERMITS.

Act of June 4, 1897 (30 Stat., 11, 35), as amended by act of June 6, 1900 (31 Stat., 661).

The Secretary of the Interior may permit, under regulations to be prescribed by him, the use of timber and stone found upon such reser

1 This proviso is repealed by a provision in the agricultural appropriation act of June 30, 1906 (34 Stat., 669, 684), supra.

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vations, 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.1

Young trees furnished free, Nebraska National Forest.

Act of March 4, 1913 (37 Stat., 828).

Nebraska National Forest, Nebraska, * * * That from the nurseries on said forest the Secretary of Agriculture, under such rules and regulations as he may prescribe, may furnish young trees free, so far as they may be spared, to residents of the territory covered by "An Act increasing the area of homesteads in a portion of Nebraska," approved April twenty-eighth, nineteen hundred and four;

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Timber and stone for United States reclamation works.

Act of February 8, 1905 (33 Stat., 706).

In carrying out the provisions of the national irrigation law approved June seventeenth, nineteen hundred and two, and in constructing works thereunder, the Secretary of the Interior is hereby authorized to use and to permit the use by those engaged in the construction of works under said law, under rules and regulations to be prescribed by him, such earth, stone and timber from the public lands of the United States as may be required in the construction of such works, and the Secretary of Agriculture is hereby authorized to permit the use of earth, stone and timber from the forest reserves of the United States for the same purpose, under rules and regulations to be prescribed by him.

Free use of earth, stone, and timber by Navy.

Act of March 4, 1915 (38 Stat., 1100).

That hereafter the Secretary of Agriculture, under regulations to be prescribed by him, is hereby authorized to permit the Navy Department to take from the national forests such earth, stone, and timber for the use of the Navy as may be compatible with the administration of the national forests for the purposes for which they are established, and also in the same manner to permit the taking of earth, stone, and timber from the national forests for the construction of Government railways and other Government works in Alaska: Provided, That the Secretary of Agriculture shall submit with his annual estimates a report of the quantity and market value of earth, stone, and timber furnished as herein provided.

Export of pulp wood from Alaska.

Forest transfer act of February 1, 1905 (33 Stat., 628).

SEC. 2. That pulp wood or wood pulp manufactured from timber in the district of Alaska may be exported therefrom.

1 Locality of use, provision modified by act of Mar. 4, 1907 (34 Stat., 1270), which proviso was repeated in the Agricultural appropriation acts of May 23, 1908, Mar. 4, 1909, May 26, 1910, and Mar. 4, 1911. See further act of Mar. 4, 1915 (39 Stat., 1096).

Plants, trees, etc., imported free.

Tariff act of June 29, 1909, free list, paragraph 652 (36 Stat., 11, on p. 78). 652. Plants, trees, shrubs, roots, seed cane, and seeds imported by the Department of Agriculture or the United States Botanic Garden.

Contracts.

DECISIONS.

The United States can not by suit in equity enforce specific performance of a timber sale contract. (Sol. Op. in re Standard Lumber Co., Mar. 26, 1915.)

The general rule is that when one enters into a contract with the Government, his obligation thereunder becomes fixed beyond the power of any Government official to modify its terms so as to relieve him of any of the burdens imposed upon him. (2 Sol. Op., 744, and cases there cited.)

It seems, however, that the proper Government officials may, by acquiescence, waive the time limit in a contract by allowing the contractor to continue the work. In such cases all the other requirements of the contract govern the relations of the parties. (Id.)

It seems also that the head of a department can waive penalties or forfeitures provided for in a contract in case of nonperformance within the time limit, when the Government suffers no damage by the delay; or if it suffers some damage less than the amount of the penalty or forfeiture, he may remit all above the actual damage which the Government has suffered. (Id.)

It seems further that in cases where the interests of the Government clearly so require, the head of a department may modify or abrogate a contract with or without the consent of the contractor. If done without the consent of the contractor and he suffers damage or loss thereby, he probably has a claim against the United States for the amount thereof. The officer modifying or abrogating a contract may or may not have power to settle the claim, depending upon the circumstances and the terms of the statute under which he is acting. (Id.)

The Comptroller of the Treasury applies the foregoing general rules to timber sale contracts in the same manner and to the same extent as to other contracts with the Government. (See Comptroller's decision of Dec. 27, 1911, unpublished.)

Under the provisions of a contract which provided for possible extensions of time, the sureties on the bond, which was part of the contract, were not discharged by reason of the extensions which were granted pursuant to the contract. (United States v. McMullen et al., Administrators, 222 U. S., 460.)

Where, before expiration of a timber sale contract, the purchasers notify the forestry officials that they have sold their sawmill and equipment, because the contract is unprofitable, and it appears that they have done no work under it for several months, the Government may treat the contract as abandoned, and sell the remaining timber to other parties; but there is no authority to cancel the old contract so as to relieve the purchasers thereunder from liability for damages thereunder in case any shall have been found to have been sustained by the United States. If, in such case, the Government sells the re

maining timber to others and receives from them the full price fixed in the original contract, then it could not collect such price from the original contractors. (2 Sol. Op., 758.)

Upon certificate of the proper forest officer that no damage has been sustained by the Government through the abandonment of a timber sale contract, a refund may be made to the purchaser of any amounts paid by him and remaining in the hands of the Government, over and above what is due for timber actually taken and for such expenses as the Government may have incurred. (Solicitor to his assistant at Albuquerque, Oct. 3, 1912.)

The decision in 28 Op. Atty. Gen., 12, is limited to the case actually presented and decided, namely, that an executive officer may refrain from enforcing a contract when some action of the Government, in its sovereign capacity, has made it inequitable to do so, although the waiver may be prejudicial to its pecuniary interests. That decision can not be applied where the only ground for releasing the contractor is that the contract has become less profitable than he expected. (Letter of Attorney General to Secretary of Agriculture, dated June 10, 1911.)

It is illegal to include in a timber sale contract a clause providing for a reduction in stumpage price in consideration of the purchaser's reforesting portions of the sale area (Solicitor's letter of Nov. 20, 1911, to the Forester), or constructing fire lines (1 Sol. Op., 437).

Timber which has been cut by the purchaser and not removed before the date fixed in clause 12 of timber sale Form 202 nevertheless belongs to the purchaser when he has paid the double stumpage price provided for by clause 14. He may, therefore, remove it from the forest after the date fixed in clause 12, but must do so in a reasonable time and under the supervision and direction of the forest officers supervising the sale. (2 Sol. Op., 836.)

Secretary of Agriculture may sell insect-infested timber, which is a menace to the National Forest, from an unperfected mining claim thereon, even without the consent of the claimant. (Lewis et al. v. Garlock, United States intervenor, 168 Fed., 153.)

In view of the exigency created by the great forest fires of the summer and fall of 1910, and of the facts presented showing the rapid deterioration of fire-killed timber in the northern and northwestern States, the Secretary of Agriculture may permit the claimants to sell such timber from homestead and other claims and from unsurveyed or unclassified railroad sections, taking a bond, with adequate security, from the purchaser to protect the interest of the United States, as the same may ultimately appear. (Letter of the Attorney General to the Secretary of Agriculture dated Nov. 23, 1911.)

It is understood that the foregoing opinion is limited to the situation created by the great fires of 1910, and is not to be applied generally, even to fire-killed timber, especially in regions where such timber does not rapidly deteriorate. (Solicitor to his assistant at San Francisco, Jan. 22, 1912.)

NOTE. Prior to the receipt of the above-mentioned letter of the Attorney General, the Solicitor had rendered the decisions digested in the four paragraphs next following, which are still applicable, except as above stated.