RIGHTS NOT FOR COMMERCIAL USE

In practice in all three countries, Germany, France, and England, except in the case of the public grazing grounds in France, the accepted principle is that a man can only graze the amount of stock which he can maintain over winter or at ordinary times on his own land. This is to prevent commercial use of rights, which would necessarily mean their abuse. Apparently it was the original intention even on the public grazing lands in the mountains of France. But in the face of an organized grazing industry the old regulations have broken down.

As far as public grazing lands are concerned, and there are considerable areas in both countries, neither the French or the English Governments have ever been able to assert authority to control grazing upon them, and they are still either persistently overgrazed or entirely unregulated. The same is true in the Austrian Alps.

PROGRESSIVE LOSS OF PUBLIC COMPENSATION FOR RIGHTS

According to Huffel (p. 238, Vol. I) those forest rights which originated by definite grant usually involved a payment for the right. The payments were nearly always nominal, but were at first insisted upon to show that the grazing or wood usage was a privilege accorded and not a right exacted. Sometimes these payments were in the form of single sums once for all, sometimes an annual one. Sometimes payments were in personal service, sometimes in goods or produce.

As time went on the annual payments were apt to be forgotten as being too small to be worth collecting. Later if attempts were made to collect them, the Forest Service or landowners found themselves unable to do so in the face of the opposition of the right holder. At length they were either legally outlawed or completely forgotten.

In either case the owners or the forest officers discovered that not only were they unable to receive compensation for the loss of their forage or wood, but that they had in addition parted with legal title to it.

Is it not conceivable that remission of grazing fees if made legal on our western lands might end in the same way?

In France early in the nineteenth century it came very near being declared on the basis of legal studies that by immemorial usage right holders had actually become coowners of the soil of the forest. (Guyot, p. 212.) If this interpretation had prevailed it would have broken up their national forests. It is conceivable that if grazing rights should be legally recognized on our national forests the same claim might later be raised here.

RIGHTS BELONGING TO ENTIRE COMMUNITIES

It frequently happened, particularly in France, that rights were granted or grew up in favor of all the inhabitants of a village. (Michel and Lelong, p. 183.)

Rights of this kind were perhaps the most dangerous of all, since with the increase in population, the drain upon the forest automatically increased in proportion and if not checked could not help ending in its destruction.

In the face of this condition the Forest Service had to either surrender the forest, reduce the rights of each holder to a point where they were of little or no value, something to which the inhabitants were bound to object strenuously, and often successfully, or call on the law to prevent new rights from being created for new inhabitants. In the latter case, which seems to have been generally adopted, a privileged class arose in the village which profited from having descended from right holders or from having purchased property to which rights adhered, and had use of public resources to which their cocitizens by reasons of migration to the village at a later date were denied. The unfairness of the arrangement from any point of view scarcely needs to be discussed.

If "rights based on established priority" are legally granted to our stockmen of to-day, one can scarcely envy the officers administering our national forests of 50 or even 25 years hence, when, to preserve the remnants of the timber and forage on the forests, they are obliged to take what will certainly be considered an arbitrary and undemocratic course in opposing the creation of new rights

to meet the demands of an increased population. Yet, if they are true to their professional duty, they will have to do so, and suffer the unpopularity so frequently accorded under similar circumstances to their French professional brethren.

LEGAL RECOGNITION OF GRAZING ON THE NATIONAL FORESTS

It may be doubted whether Congress will grant the full demands of the stockmen for "property rights," something against which the public has already shown its opposition. In fact the bill introduced by Senator Stanfield (S. 2584) says nothing about them, but even a casual reading of its text shows that the 10-year grazing contracts," which it talks about, are almost the same thing and would almost automatically become full property rights in the course of time. Furthermore, it seems obvious that any legislation establishing "legal recognition of grazing on the national forests" is bound to serve as an entering wedge under cover of which such "rights" could creep in with the passage of the years, entirely unknown to the public and almost without the forest officers themselves being aware of it. It is doubtful if many men, even foresters, were aware of what was really taking place in Europe when they grew up there.

Senator PITTMAN. What I wanted to know is what part of this legislation you object to and what you suggest in place of it? Your academic discussion undoubtedly is very interesting, and probably is very largely true with regard to the scientific part of it. I must say, however, that I can not agree with your knowledge of common law. And I would like to know what part of this bill you object to, what sections?

Senator WILLIAMS. Which bill are you now referring to, Senator? The CHAIRMAN. S. 2584.

Senator PITTMAN. You might call it the committee bill as distin guished from the department bill.

Mr. CHAPMAN. I object to the sections which I will name, which to my mind establish what are equivalent to perpetual property rights for grazing on the national forests. These sections to which I object are Title III, section 308, paragraph (b), clause (3). [Reading :]

(b) A contract for grazing privileges shall

(3) Be for 10 years unless the adequate protection of more important public interests in any forest or portion thereof requires a shorter period for any contract.

I wish to say that the objections are taken not to any specific item isolated, but to the four or five which I shall give taken together.

Senator PITTMAN. Well, now, what is your objection?

Mr. CHAPMAN. That will be brought out, sir, by the remaining references here.

Senator PITTMAN. Well then, bring it out.

Mr. CHAPMAN. I object to section 307 (a) (1):

In granting contracts for grazing privileges the supervisor (1) as to grazing privileges included within grants in effect at or immediately prior to the time for regranting such privileges shall, except as provided in paragraph (b) of this section, give to the grantee of such privileges 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 then to such reduced amount.

This I object to on the ground that it consolidates the grazing privileges in the hands of existing permittees to too great an extent. Senator PITTMAN. Now wait a minute. Now turn to section 308, paragraph (b), subdivision (3). It shall—

Be for 10 years unless the adequate protection of more important public interests in any forest or portion thereof requires a shorter period for any contract.

Does not that give them the power to make it for one year, or six months?

The CHAIRMAN. Or terminate it any time?

Senator PITTMAN. Does not that give them that power?

Mr. CHAPMAN. They can make an original contract for less than 10 years if necessary.

Senator PITTMAN. They can make it for one day if necessary? Mr. CHAPMAN. Now the third

Senator PITTMAN. Just a minute. Could you give any more power to the Department of Agriculture than that with regard to the period of time?

Mr. CHAPMAN. With regard to the period of time that seems to indicate that they could give contracts for less than 10 years.

Senator PITTMAN. And it indicates that they could refuse to give it at all, does it not?

Mr. CHAPMAN. No, I do not think that that indicates it at all. The other parts of the bill show

Senator PITTMAN. Well, but if they could give it for one day is that not tantamount to revoking it?

Mr. CHAPMAN. I would not consider that it would work out that way.

Mr. BOWDEN. In that connection, Mr. Chapman, will you read section 306.

Mr. CHAPMAN (reading).

Under the direction of the Secretary

Is that it?

Senator PITTMAN. Yes.

Mr. CHAPMAN (continuing reading).

the supervisor is authorized

(1) To determine what areas in the forest shall be used for grazing purposes, and in respect of each such area, the grazing capacity, the grazing season, and the kind of livestock to be grazed thereon.

Senator PITTMAN. Now before you leave that: Would it not be entirely within his power to prevent grazing on a particular part of the forest where he was trying to allow these seedlings to grow 3 feet high?

Mr. CHAPMAN. Yes, if he took that portion of the bill without any regard to anything else in the bill.

Senator PITTMAN. Well now, wait a minute. You say if it overgrazed they are liable to kill these seedlings. Has he not the absolute power there to set the number of head of stock that may be on any

area?

Mr. CHAPMAN. No, I do not think so.

Senator PITTMAN. Well, it says, " in respect of each such area, the grazing capacity "-what is meant by that?

Mr. CHAPMAN. Why, he can determine the grazing capacity.

Senator PITTMAN. I understand.

Does that not mean the number

of head that can be put on a certain area?

Mr. CHAPMAN. Yes.

Senator PITTMAN. The grazing season?

Mr. CHAPMAN. Yes, he can determine a lot of facts here. Senator PITTMAN. Yes. And the kind of livestock to be grazed thereon?

Mr. CHAPMAN. Yes.

Senator PITTMAN. He can cut off sheep if he wants to?

Mr. CHAPMAN. Oh, well, the question of the facts that he determines and what he is going to do with them are two different things. I have found quite a difference in this bill with respect to those things.

Senator PITTMAN. You mean to say that you do not trust the Department of Agriculture, is that it?

Mr. CHAPMAN. I do not trust the remainder of the bill. I trust the Department of Agrculture, but I consider that this bill as a whole divests him of authority to do what he wants to with these facts.

Senator PITTMAN. Under those sections there you have permitted him to limit it to one day, which practically terminates the contract. You have allowed him in there to say what areas they may graze on, and what they may not graze on. You have allowed him

to say what kind of stock may go on there, and what kind of stock may not go on there, the number of stock, or the particular kind that may go on a particular area. Now if you can think of any stronger power write it out here for us so we will have something to think about.

Mr. CHAPMAN. The real trouble here is the fact that these grazing rights, as established by this bill, are practically taken out of the further control of the Secretary.

Senator PITTMAN. Whereabouts?

Mr. CHAPMAN. In these paragraphs that I am trying to get into the record.

Senator PITTMAN. Why, this paragraph that I have just read, does that take it out of the control?

Mr. CHAPMAN. No, sir; but the next one does.

Senator PITTMAN. Well, let us read the next one.

Mr. CHAPMAN (reading):

SEC. 307. (b) The supervisor is authorized, where it is necessary in afford ing 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 ten-year period.

That is practically, in effect, a perpetual guarantee, because 5 per cent of what is in effect as the maximum reduction means that you could never wipe out a grazing privilege under any circumstances. Senator PITTMAN. Well, do you not know that that must be taken in connection with the rest of the bill?

Mr. CHAPMAN. Yes, that is what I am doing.

Senator PITTMAN. This clause (b) means undoubtedly this, that where the Secretary of Agriculture has determined that the existing permittee is in a proper area, that he has the proper capacity, that is, that it is not an excessive capacity of grazing, that he is grazing

in the right season, that he is doing no harm whatever, that therefore there is no reason why he should not have the permit. But this section over here provides that even after all that exists, that if there is a homesteader adjacent to this range, that they want to give the homesteader something, although he was never entitled to any priority, and they give him something, they simply say that you can not give all of it to the homesteader, but you may give him five per cent of it. That is what it means.

Mr. CHAPMAN. That means that 5 per cent is the limit?

Senator PITTMAN. Why yes. They are going to take something away from a man that the Secretary of Agriculture says there is no harm in him using, that it is a benefit to use, because he is using it in entire accord with the policy of the Department of Agriculture. But in spite of all that, there being a homesteader adjacent to it, and the homesteader having no rights whatever, no permit whatever, they are going to take some of it away from this man. And the bill simply says, You can not take it all. You can take not to exceed

5 per cent."

Senator WILLIAMS. I think, if you will pardon me, that the witness is attempting to say that the supervisor or the Secretary may grant grazing permits which run for a period of ten years each, and which may be renewable, and that these permits may be cut down by as much as 5 per cent, leaving him 95 per cent.

Senator PITTMAN. For 10 years.

Senator WILLIAMS. Leaving 95 per cent of the privilege still existing.

Mr. CHAPMAN. Yes.

Senator WILLIAMS. And that that affords the witness a reason for his argument.

Senator PITTMAN. Yes.

Senator WILLIAMS. In connection with the character, the length of time that these permits are to run.

Senator PITTMAN. No doubt. He takes that section there, and if that section stood alone, if there was no other section in the bill whatever, they might hold as against the Government that during the 10 years they could not reduce it over 5 per cent, and therefore he had it for 10 years. But undoubtedly when you take these other clauses over here, as to what may be put in the contract, there is a clause that he may place any other conditions that he wants in the contract. Now, when he draws a contract with the permittee he draws a contract with him that he shall have a permit, we will say, for 10 years, provided that the Secretary of Agriculture may determine what area in that particular permit shall be used for grazing purposes at various times. The number of stock that may be grazed on it at that particular time.

Senator WILLIAMS. I follow you quite fully.

Senator PITTMAN. In other words, here is a contract drawn by the Secretary of Agriculture, and he is permitted to put any condition in the contract that he wants to.

Senator WILLIAMS. I follow you fully.

Senator PITTMAN. Now, over here I understand the witness feels that by taking this isolated statement the Government is estopped