the homestead and other public land laws, I feel impelled to note my opposition thereto.

There is pending before the present Congress Senate bill 752 (p. 11), providing for the establishment of grazing districts and their regulation, which applies to Alaska as well as the public lands of the United States in any State, and which, if amended as suggested in my report thereon under date of January 6, 1926, will be free from the objections which may be urged against Senate bill 2584.

In that report, with reference to the changes proposed, I stated:

"I can not give my approval, however, to lines 19 to 21, inclusive, page 2. which propose to base the fees on cost of administration, plus 25 per cent. An arbitrary provision like this makes no allowance for difference in value of leased areas, nor for increased grazing value, which it is hoped will result from regulation and development. I favor reasonable fees, very low where conditions demand it, but there should be a fair return when and if the value of the leasehold warrants. The term reasonable fees' would be always subject to definition and ascertainment, and the department is always open to hear the views of parties in interest upon the subject. I therefore recommend that there be stricken from lines 19 to 21, page 2, the words 'based upon the actual cost of administration, plus a margin of 25 per cent.'

"The bill in line 21, page 3, provides for the payment of 20 per cent of receipts to the State or Territory where the leased lands lie. I recommend this payment be increased to 25 per cent of the receipts.

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Sections 11, 12, and 13 are, in my opinion, objectionable and unnecessary. They provide for an appellate board of five-two to be selected by the Secretary of the Interior from the department; two to be selected from nominees of the livestock industry; the fifth to be selected by the four. Appeals lie from the action of the secretary to the board, and remove from his authority any matters so appealed. The proposed board would be cumbersome and expensive, adding unnecessary cogs to administrative machinery. Moreover, it is contrary to the letter and the spirit of existing public-land and forest reserve practice and laws.

"The Secretary of the Interior supervises and exercises jurisdiction over public lands, minerals, and many other land and property interests, single cases sometimes involving millions in value. The rules and the practice of the department provide for appeals and reviews all along the line, and finally to the secretary himself. His action on questions of law is reviewable in the courts. The system has worked well, and with relative economy, both to individual claimants and from a governmental standpoint. I see no reason

to change this procedure with respect to grazing leases. I recommend that sections 11, 12, and 13 be eliminated from the bill."

For the reasons herein stated, I recommend that Senate bill 2584 be not enacted into law, but that favorable consideration be given Senate bill 752 modified as suggested.

Very truly yours,

(Signed)

HUBERT WORK.

On February 15, 1926, Hon. W. M. Jardine, Secretary of Agriculture, submitted the following report on S. 2584 to Hon. Robert N. Stanfield, chairman Committee on Public Lands and Surveys:

DEPARTMENT OF AGRICULTURE,
Washington, February 15, 1926.

Hon. R. N. STANFIELD, United States Senate.

DEAR SENATOR STANFIELD: I am in receipt of your letter of January 18 requesting an opinion on the merits of S. 2584, "To promote the development, protection, and utilization of grazing facilities on public lands, to stabilize the range stock-raising industry, and for other purposes."

Attention is called to a defect in the title of the bill, which purports simply to deal with "public lands." The term "public lands" in land legislation is usually construed to mean the unreserved, unappropriated public domain. This bill, however, in addition to dealing with such lands, devotes the greater part of its text to providing a new system for regulating grazing on the national forests.

This measure is subdivided into five titles and will therefore be discussed under the several title headings.

TITLE I.-GENERAL PROVISIONS

This title starts out with a declaration of policy for the future handling of an administrative activity which this department on February 1, 1926, will have handled to the best of its ability for a period of 21 years. I refer to the administration of grazing on the 88,000,000 acres of national forest land used for that purpose. Its dealings with the unreserved public lands is only a minor feature. In any event, such regulation of the public doman, as compared with the national forests, would be of relatively small volume for years to come. Why this is necessarily so under the provisions of this proposed act will be shown in the discussion of Title II.

Section 1 of this title declares it "to be the policy of Congress to promote a more complete development, protection, and utilization of the grazing facilities of the unreserved and unappropriated public lands and the national forests, and to stabilize the range stock-raising industry, by making provision for definite and stabilized grants of grazing privileges and a coordinated and localized administration of grazing thereon. Obviously the promotion of 66 more complete development, protection, and utilization of these lands is a sound policy, but when that policy is coupled with the provisions contained in paragraph (2) of section 2, which defines the "area-basis contract" as "a grant to a grantee of the exclusive right to graze, within a specific area and for a definite period, such numbers and kinds of livestock in such manner and during such grazing seasons as he may determine," it appears to go much further than has ever before been proposed in the history of our public lands. Just what meaning or scope this measure would ultimately give to these "grants" can not, of course, be told in advance of actual test and interpretation by the Supreme Court. However, in my opinion, this measure would give to the holder of a grazing privilege an actual interest in land upon a basis which would be in practice substantially perpetual. It seems almost needless to say that the department would not sanction such a plan of disposal of our remaining public range resources.

TITLE II.-GRAZING ON PUBLIC DOMAIN

The 19 sections under this title deal with grazing on the public domain in the States of Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, and Utah. The two Dakotas, Washington, Wyoming, Oklahoma, and other public land States are omitted. Within the nine States specifically enumerated in the bill the Secretary of the Interior may, within certain limitations, establish grazing districts. No district, however, may be established unless petitioned for by a majority of the livestock raisers using the range.

The provisions of this title appear to contemplate only a temporary system of regulation, since, under section 501 of Title V, the land would continue to be subject to appropriation under any of the public land laws excepting the stock-raising homestead law. Stability of use would, of course, be impossible without stability of control, and stability of control is, of course, impossible so long as the title may pass from the Government at any time.

The form of administration proposed under Title II is quite unusual. Section 205 provides that such grazing districts shall be administered by the register of the land office of the land district within which the grazing district is located. It authorizes him to perform certain functions clearly of a technical nature and not of a character usually supposed to come within the qualifications of an officer appointed to fill such positions.

Specifically, he is expected to

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(1) Determine the grazing capacity of any area in a grazing district for the purpose of fixing, on a per capita or area basis, the grazing fees for the grazing privileges therein.

"(2) To make such inspections of the range within a grazing district and of the use of such range as are necessary in the protection of the range and the enforcement of contracts.

"(3) To make such rules and regulations, exercise such powers, and perform such duties, in respect of the grazing district as he deems necessary to effectuate the purposes of this title."

The foregoing are functions of a skilled grazing man trained in public range administration. That the registers of the land offices could not be expected to satisfactorily fulfill such duties is no reflection upon their ability

or capacity to fill the offices which they are now holding. I fear also that his dual responsibility of regulating in the field the use of these lands for grazing by stockmen and distributing title to the same lands through the operation of the public land laws through his land office authority would lead to endless complications and embarrassment.

Section 208 of Title II makes provision for "preferences" in the granting of grazing contracts. This provision will be discussed later in this report. Section 209 empowers the register to make the initial allocation of range, but section 210 places final determination under a board of stockmen. This board of three men is to have state-wide authority to apportion the range among the applicants for range in grazing districts. Their word is law and from their decision there is no appeal. The section is headed "Final determination of allocations." The expression final determination" is used twice in the section and paragraph (b) of section 407 nails this point by specifically providing that "the action of the board under the authority of Title II in respect of the approval of any contract shall be final and no appeal shall be had." In other words, the Secretary of the Interior is without authority to modify a decision of the board, no matter how unjust or unwarranted it may be.

TITLE III.-GRAZING WITHIN NATIONAL FORESTS

This title contains 15 sections and sets up a new and untried system for regulating the use of national forests for grazing domestic livestock on the national forests in the States of Arizona, Colorado, California, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming. The measure would not apply, however, to the national forests in the other States. Unless changed either by law or administrative action, two systems of grazing regulation would be in effect upon the different national forests, one applying in the 11 publie land States named and the other applying in such States as North and South Dakota, Nebraska, Oklahoma, Arkansas, Minnesota, Michigan, Florida, Alabama, and all the other States within which purchases have been made under the provisions of the Weeks law. Needless to say, two systems for handling the same activity by the same bureau of the same department, one to apply in certain States and the other system in other States, does not commend itself to me as embodying sound principles of organization.

In my opinion, however, the fundamental defect in the measure under consideration lies in its "declaration of purposes" as expressed in section 302, which reads as follows;

"SEC. 302. In furtherance of the policy declared in section 1 of this act, the protection and development of uncultivated grasses and forage plants in the national forests and the utilization of such grasses and plants for grazing purposes shall be considered as one of the purposes for which such forests are established and maintained."

The act of June 4, 1897 (30 Stat. 11), providing for the administration of our national forests and upon which the entire national forest structure is based, provides that "no public forest reservation shall be established, except to improve and protect the forest within the reservation, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States." These forests have, therefore, been created for two purposes (a) timber production, and (b) watershed protection. For many years they have been administered with a view primarily to the furtherance of those purposes, while at the same time developing, protecting, and utilizing all the other resources within the forests so far as this can be done without substanaial interference with timber production or watershed protection. However, where grazing use has threatened to prevent reforestation, as in the case of areas eut over under timber sale requirements, or has resulted in injury to the watershed, grazing has been restricted to the extent necessary to avoid the threatened injury. Section 302, however, would have the legal effect of putting grazing use on a party with use for timber production and watershed protection, the two primary purposes for which the national forests have been created and protected. This would have a far-reaching effect. For example, it would seem to prevent any affirmative steps being taken to reforest any portion of the national forests that are now used for grazing, since reforestation would somewhat reduce the value of the land for grazing purposes. I feel that it is desirable for Congress to affirmatively approve the intelligent use the national forests for grazing and other purposes where such uses d.

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not interfere with the primary purpose of timber production and watershed protection; but to alter the fundamental foundation of these great national reservations would not, in my opinion, be in the public interest or meet with general approval. In short, it is, in my opinion, just as illogical and undesirable to designate grazing as one of the primary purposes of our national forests as it would be to announce that timber production was one of the primary purposes of creating grazing districts under Title II.

Section 305 of this measure provides for the designation by the Secretary of Agriculture for each forest an officer "to be known as supervisor." This officer and the Secretary of Agriculture are empowered to administer the grazing upon the national forests in conjunction with the State grazing board acting as a body of extra-departmental authority. No account is taken of the existing organization of forest rangers, grazing inspectors, district foresters, or forester. In effect, jurisdiction over this particular activity is taken out of the bureau which under existing law is charged with the responsibility of protecting the forests and regulating their occupancy and use.

Nowhere in this measure do I find language indicating that it is the purpose or policy of the Government to bring about an equitable distribution of the use of public grazing lands or to protect the settler and homesteader against unfair competition in the use of the range, whether public domain range or range within the national forests. Section 208 provides that "in granting contracts to applicants for grazing privileges the register shall endeavor to grant such privileges to users of the range within the grazing district as will be as nearly identical in respect of location, extent of usage, and kind of stock, with the customary usage of such users as is consistent with the efficient administration of such district." In other words, the range shall be "granted" to the present users. Paragraph (b) of the same section, however, makes provision for a preference order of grants to applicants who have not been users; but this is "subject to the preference provided in paragraph (a)." In other words, preference may be given to new settlers or owners. only in the event of there being unused range available. Those who now have hold substantially in perpetuity. The initial term of the grant, according to section 213, shall be "for a term of 10 years in all cases except where the determination of preferences of allotments is pending, or where the land may be required for other than grazing purposes within the period of 10 years; and in such cases contracts may be granted for a shorter term."

Section 217 provides that a grantee who has complied with the terms of the contract shall, on the expiration thereof, be entitled to preference in the regranting of the grazing privilege included in such contract. And for fear there might be any doubt about this, paragraph (b) of the same section clearly states:

"(b) Subject to such change in the amount fixed for grazing fees, and to such other alterations in terms and conditions as the register deems necessary for administrative purposes or for land settlement, the register shall endeavor in regranting any grazing privileges to promote the policy of section 1 of this act by allowing the grantee to retain the grazing privileges included within his former contract."

Should there be any doubt the permanency of the privilege thus granted and regranted, that doubt will be removed upon reading section 215, which provides as follows:

"SEC. 215. The grantee may, with the approval of the register, assign in: whole or in part any contract. The register shall not withhold his approval except for good cause. Upon the death of the holder of any contract all rights under such contract shall inure to the benefit (1) of his devisee if he leaves a will, or (2) of his estate if he dies intestate."

As I read this measure, once a preference is granted to any part of the rangewithin a grazing district under Title II that grant is permanent except as specific areas of land may be taken up under the public land laws or may be needed for "administrative purposes." What is meant by "administrative purposes does not appear. In the national forests it would mean headquarters sites, pastures, and the like needed by Government officers in administering the forests. Unless such language might be extended to cover the urgent need of new settlers or homesteaders the register appears to me without authority to reduce any grazing permittee by a single head or a single acre in order to allow a homesteader to graze stock on lands outside the actual limits of his. homestead entry. Needless to say, this is not in harmony with the principle upon which the grazing of the national forests has been developed and admin

istered. In short, the homesteader who may have settled upon the land a number of years ago but has been denied a fair share of the range under unrestricted range competition would, upon the passage of this measure, find that his competitors were backed by the law of the Nation, making his exclusion from the use of the public domain perpetual.

Fortunately, this restrictive policy is slightly modified in the provision for preferences under Title III. Paragraph (b) of section 307 provides as follows: "(b) The supervisor is authorized, where it is necessary in affording grazing privileges needed by homesteaders occupying homesteads in the vicinity of the forest, to reduce the grazing preference provided in clause (1) of paragraph (a) of this section by not more than 5 per centum thereof in any 10-year period."

Under the provisions of the foregoing section, if each forest supervisor should apply the maximum reduction to a given permit at the expiration of each 10year period, taking full advantage of all the power granted him under the law, at the end of 100 years a permittee could be reduced a total of 42 per cent of the original number granted. Assuredly, this is stability carried to the nth degree. Furthermore, I find nowhere in the measure any provision for canceling, revoking, or reducing a grazing permit either by court action or administrative action for even the most flagrant violation of the grazing contract.

I regret to see that this measure appears to make no provision for reductions in numbers of stock when necessary for the purpose of protecting either the forest, the watershed, or even the range itself. It is true that paragraph 3 of section 306 provides that under the direction of the Secretary the supervisor is authorized to insert in any contract granted by him such terms and conditions as he deems necessary for the adequate protection of any resource of the forest." But this language must be interpreted in the light of other provisions of the bill. Section 311, paragraphs (a) and (b), provides as follows:

"(a) The amount of reduction in grazing privileges that may be made for any purpose under any contract during the term thereof shall be stated in the contract, and no reduction in excess of such amount shall be made without the consent of the grantee.

"(b) No reduction in the amount of grazing privileges granted by any contract shall be made during the term thereof for the purpose of redistributing or allotting to another person any portion of such grazing privileges."

It may be intended that this shall be construed, when taken together with paragraph 3 of section 306, to give the supervisor authority to reduce grazing privileges to protect forest, watershed, or range. Upon the other hand, section 307 provides that excepting for the maximum 5 per cent reduction which may be made at the end of the 10-year period to afford grazing privileges needed by homesteaders, the supervisor shall regrant to the applicant "a preference to the full extent of such privileges (measured by the area of land used or by the number and kind of stock grazed), or if less than the full amount of such privileges is granted them to such reduced amount." Just how this language would be construed by the court I am at a loss to conjecture. It appears, however, that it was intended to authorize the regranting of a 10-year permit for the full number of stock under preference at the termination of the preceding 10-year period, subject to a maximum reduction of 5 per cent for homesteaders only. If, however, it is intended to give the supervisor or the Secretary authority to reduce the number when nececsary to protect forest, watershed, or range, or to bring about an equitable distribution in the use of a publicly-owned resource, the language of the bill might very well be clarified to make this authority clear.

In place of the per capita permit system which has been in effect upon the forest reserves or national forests from their inception down to the present day, Title III proposes to put into effect an area or lease system. Proper protection of the forest, watershed, and range, together with reasonable consideration of the needs of new homesteaders and settlers, dictated the adoption and has required the perpetuation of a per capita permit system in order to provide the flexibility necessary to safeguard and protect the numerous interests. involved. It is evident, of course, that such a system is not consistent with a system of grants." The permit per capita system provides for community use by many small owners grazing stock on the same area. It allows also for readjustment in range allotments as ownership changes and the size of herds fluctuates. It has worked successfully for over 20 years. Variations from it may be desirable in special cases, but these should be the exception rather than the rule.