the Secretary of Agriculture as the case is appealed up the line, he is done an injustice, and he has no opportunity to correct it. There is no determination of fact along the route but the fact stands. The permittee out on the western range has not much opportunity to come down here to Washington and go before the Secretary of Agriculture to present his case, and I do not know why he should be compelled to do such a thing in order to get justice. I do not know why the facts should not be determined as far as possible by such a board as I have mentioned, and that those facts should stand. And then from there on I think you should adopt some rule of evidence that is commonly acceptable, other than gathering in here and there anything to back the case up in the position the various persons may take, without an opportunity being given to the plaintiff or defendant-permittee in the first instance.

Colonel GREELEY. Well, of course that is our present procedure. An appeal is made from the decision of the supervisor to the district forester. Now, as that appeal goes up the district forester adds all facts presented by the appellant together with all facts presented by the supervisor.

The CHAIRMAN. But you do not get the facts. You take ex parte statements and consider them as facts, and that is one of the very things I object to. I know as a livestock man who has had experience, and I know of hundreds of others who have had experience, that decisions handed down all along the line were positively erroneous. I think some system should be defined by law that would as far as possible prevent erroneous decisions.

Colonel GREELEY. The appellant is given full opportunity to answer anything in the record that he regards as prejudicial or inaccurate.

The CHAIRMAN. Yes, to do that down here in Washington, while he is out in California or in Arizona or in Wyoming or in Utah or somewhere else.

Colonel GREELEY. I mean in the local consideration of his appeal by the district forester. Now, I was intending to take up shortly, when I might resume the general trend of my testimony, this question of the effect of the provision of the proposed bill which provides that the findings of the board shall be prima facie evidence of the correctness of those findings (sec. 407, d). I must say that I oppose that provision very positively, because as I interpret it, and as four different attorneys in the department have interpreted it, it destroys the Secretary's right to review the case presented to him by the board.

The CHAIRMAN. That is, he has that right except that he must accept the facts established as facts.

Colonel GREELEY. Yes, but

The CHAIRMAN (continuing). It must be taken as prima facie evidence.

Colonel GREELEY. Yes. If you have a complicated case, or suppose you have a case that involves injury from grazing to young forests, or injury from grazing to municipal watersheds, such a case as we had this past summer involving the watershed of Walla Walla. If your board holds an investigation, as it should, and

gathers in all the facts, all the evidence, and arrives at its conclusion as to the facts, then an appeal can be taken by either partyin the case I have just referred to, an appeal may be taken either by the city of Walla Walla or by the stockmen whose stock have been grazing on that watershed in the past. That record comes to the Secretary of Agriculture, as I construe this provision of the bill, and as the solicitor of the department construes it, and as three other attorneys whom I have consulted within the department have construed it, and the Secretary would have to take absolutely the determination of those facts as arrived at by the board, would have to take them as final, unless fresh evidence were submitted to him. Fresh evidence might be obtained which the Secretary might say was sufficient to rebut or contravert the findings of fact by the board. But on the record as it comes up his authority to review is destroyed as far as the facts are concerned.

The CHAIRMAN. He can pass upon the facts that were controverted of rebuted, which would be before the boad.

Colonel GREELEY. Not as the operation of that section is construed by our attorneys.

The CHAIRMAN. Well, we will have a written opinion of the solicitor on that.

Senator PITTMAN. But you would have no objection, I take it, to the board taking evidence, finding the facts, and reaching a conclusion as to the proper judgment?

Colonel GREELEY. Surely not.

Senator PITTMAN. Would you have any objection to the judgment standing if there was no appeal from it?

Colonel GREELEY. Certainly not.

Senator PITTMAN. And if there was an appeal from it you would be willing to have the record made before the board considered as a part of the matter presented to you along with everything else if you heard it?

Čolonel GREELEY. Oh, certainly.

Senator PITTMAN. But with the privilege or legal right to consider additional evidence.

Colonel GREELEY. To consider additional evidence or to come to a different conclusion as to the facts from that which the board arrived at if I should feel the board is wrong.

Senator PITTMAN. I do not think there would be any doubt that your solicitor would advise you that on appeal you could come to a different conclusion. He might hold that you could not go back of the facts, maybe not, but as in case of an appeal to the Supreme Court of the United States, who do not go back of the facts, they may consider the facts as they apply to the law. But you would be willing to have the record made down below, in case of appeal, I mean, to be taken up and used on appeal, so that he would not have to repeat the same evidence over again.

Colonel GREELEY. Certainly.

Senator PITTMAN. But you want the right to have additional evidence adduced by either side.

Colonel GREELEY. Yes.

Senator PITTMAN. And you want the right to have additional argument made on either side?

Colonel GREELEY. Yes.

Senator PITTMAN. And the right of sustaining, reversing, or modifying the judgment of the board.

Colonel GREELEY. Yes; I want the right of reversing or modifying the board's findings of facts on the evidence as presented to them if I feel, or if the Secretary of Agriculture should feel in his case, that the board has not correctly interpreted the evidence as gathered. Gentlemen of the committee, I think that is one of the vital features of this whole proposition from the standpoint of the relationship between grazing and the other resources in the national forests. As I interpret section 313, though I do not know that my interpretation is accepted by the committee, yet as I have studied that section, which deals with the matter of appeals and which relates back to section 307 which deals with grazing preferences and the renewal of contracts after the expiration of the initial period "any act on the part of the forest supervisor which reduces or seriously alters a grazing privilege previously exercised by a contractor" is appealable to the board.

Now, that is all right. I am perfectly agreeable that it should be, provided the board is not going to be in a position to make final determination of the facts involved that are binding upon the Secretary of Agriculture when the case comes to him for review.

In that connection I want to point out that in a good many of these cases the issue will not be between one range man and other, or as between a grazing user and the danger of injuring the forage; it may be an issue between grazing and timber growing, or between grazing and the protection of the watershed, or between grazing and the protection of the supply of water for some municipality. It may be between grazing and the protection of valuable herds of wild life, or between grazing and some recreational use of the national forests. The board apparently, as far as its qualifications are defined in the bill, is to be composed entirely of men of practical experience in the livestock industry.

There is no provision for any representation on the board of men who have any practical experience in forestry, or in the use of water from mountain watersheds, or of men who are experienced in the conditions and needs of wild animals, or any of the other things we have to deal with in the national forests, except simply grazing. In other words, you would have a board which would represent a single one of the many different interests in the national forests, and while I am entirely agreeable to having that board function as an investigating agency and an agency that is to hear appels, I question absolutely the soundness of having decisions of fact by that board which represents simply the livestock industry and nobody else, being in anywise a binding decision on the officers who are to review them. That, in my judgmeit, is one of the most dangerous features of this bill, on which tends to place grazing in a preferred status, and tends to reverse our present basis of conservation in the national forests in which the production of timber and the protection of watersheds are given first place. And as I have said my viewpoint as to the practical effect of this section of the bill is sustained by the solicitor of the department. It is also sustained by a memorandum prepared by an attorney who has had extended experience in the department and is now employed

by the Forest Service. If the committee will permit I should like to read the memorandum for the record. This memorandum is prepared by Mr. D. F. McGowan. This attorney has been connected for some years with an investigation of the Northern Pacific land grants, and prior to that had experience in the solicitor's office. (The memorandum referred to is as follows:)

Under the so-called Stanfield grazing bill it is provided (sec. 305) that the Secretary of Agriculture shall designate for each forest an employee of the Forest Service who shall execute under the direction of the Secretary: "The provisions of this title and enforce the regulations and contracts made and permits continued therein within the national forest for which he is designated."

In this connection it should be observed that the Secretary of Agriculture loses jurisdcition for the grazing on national forest lands where such lands are added to a grazing district under paragraph 4, section 264, of the bill.

Under section 401 State grazing boards are provided for and these boards have the right to hear, investigate, and decide appeals. This is a factfinding board with power to take testimony and to require the compulsory attendance of witnesses by the issuance of subpoenas. There is a sweeping authorization to the board for this purpose and the board may invoke the aid of a United States district court.

Section 407 provides for appeals to the Secretary of Agriculture from the action of the State grazing boards. In paragraph D of section 407 in connection with the appeals appears the following provision:

"In any such appeal the findings of fact of the board, as set forth in the report of the board in such case, shall be prima facie evidence of the correctness of the facts so set forth."

If this provision were enacted in the law, the Secretary would be estopped from exercising an independent judgment covering the findings of fact of the State grazing boards.

The word "prima facie evidence" have been before the courts on numerous occasions and so far back as the case of Kelley v. Jackson (31 U. S. 622– 631). the Supreme Court of the United States said:

"What is prima facie evidence of a fact? It is such as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose. The jury are bound to consider it in that light, unless they are invested with authority to disregard the rules of evidence, by which the liberty and estate of every citizen are guarded and supported. No judge would hesitate to set aside their verdict and grant a new trial, if, under such circumstances, without any rebutting evidence, they disregarded it. It would be an error on their part, which would require the remedial interposition of the court. In a legal sense, then, such prima facie evidence, in the absence of all controlling evidence, or discrediting circumstances, becomes conclusive of the fact; that is, it should operate upon the minds of the jury as decisive to found their verdict as to the fact."

It is apparent therefore that under paragraph D, section 407, of the grazing bill, the Secretary of Agriculture would not have an independent judgment covering the correctness of the facts as submitted to him by the State grazing boards, but he would be found by the findings of the board as to the correctness of the facts. It would make no difference what he thought of the findings of the board. He would be estopped from departing from the conclusions of the board as to the correctness of the facts as shown by the record presented to him by the board. When it is taken into consideration that a State grazing board has the right to subpoena witnesses, hold hearings, and require the production of books, papers, documents, etc., it is quite evident that the Secretary with his limited powers of investigation is practically forced to accept the findings of fact of the State grazing boards. Even though the Secretary might question the correctness of the facts as found by the State grazing boards, unless he were in a position to produce evidence of sufficient strength to overcome the findings of the State grazing board he would have to accept the board's findings as to the correctness of the facts; notwithstanding his own conclusions in respect thereto.

It should be remembered in this connection that the State grazing board would be a special tribunal created by Congress, and that for all practical purposes, this board would be independent of the Secretary inasmuch as its

members are to be appointed by the President and it is therefore not subject to the administrative control of the Secretary.

It is perfectly apparent that paragraph D, section 407, is couched with the intent to curtail the activities of the Secretary as much as possible. It might very well be argued, in view of the broad authority given the State grazing boards under the bill for the purpose of fact finding as contrasted to the entire lack of such authority given to the Secretary for such purposes, that it was not the intent of Congress that the Secretary exercise independent judgment in appeals cases. but that he should be bound by the findings of fact as indicated to him by the State grazing boards. This position would seem logical because if the bill intended the Secretary to have an independent judgment in connection with the evidence in any case, it would incorporate for his use a means for fact finding as adequate at least as that provided for the State grazing boards.

Section 407 speaks of appeals to the Secretary. The Secretary's power in appeal cases is but the shadow; the substance is with the State grazing board.

Now, that in my judgment touches a very vital question. Let us suppose, for example, to take a concrete situation, that a forest supervisor in renewing a 10-year permit believes that certain reductions must be made to avoid injury to young timber growth. That is an actual situation that, unfortunately, we have had on our hands, particularly in Arizona. As I read the bill the reduction of the stock grazed by outstanding permittees, in issuing the new 10-year contracts, would be appealable to the State board. The State board. I presume, and this is apparently the intention of the bill, is composed entirely of men of practical experience in the livestock industry. Now, they may hold a hearing

The CHAIRMAN (interposing). Colonel Greeley, I do not want to deflect you from your line at all, but you are not referring to the board that is provided for in this bill, are you?

Colonel GREELEY. Yes, I am referring to that board.

The CHAIRMAN. This says such board shall be composed of practical livestock men.

Colonel GREELEY. The only qualification given for that board is that they shall have practical knowledge of the livestock industry. Senator MEANS. Where is that found in the bill?

Colonel GREELEY. It also says that they shall be competent, or that they shall be fit for the duties of the office. It is section 402, paragraph (c)—

Each member of a board shall be a resident of the State in which such board is established and shall have practical knowledge of the range livestock industry.

That is the only statement as to the qualifications of the members of the board, except in section 402, paragraph (a), where it says that they shall be appointed solely on the ground of fitness to perform the duties of the office.

The CHAIRMAN. Yes; and that is it.

Colonel GREELEY. Yes; but the only qualification given here is that they shall have practical knowledge of the range livestock industry.

The CHAIRMAN. But that they shall be appointed solely upon the ground of their fitness to perform the duties of the office. What does that mean?

Colonel GREELEY. Well, I assume that it means

The CHAIRMAN (interposing). Are you bringing that in with a view to establishing that they need not have any further knowledge?