it liable to exploration, location, or entry under the mining laws. (Opinion of the Assistant Attorney General, 35 L. D., 262-268.) SPECIAL USE PERMIT. A special use permit for the use of lands for a summer home remains in full force and effect and gives the permittee complete right of possession and use as against subsequent locators of a mining claim. (Le Roy et al. v. Swanson; unpublished findings of the county court of Colorado for Clear Creek County, date Feb. 6, 1912.) TIMBER AND STONE FOR UNITED STATES RECLAMATION WORKS. Act of February 8, 1905 (33 Stat., 706). Service may use In carrying out the provisions of the national irrigation law approved Reclamation June seventeenth, nineteen hundred and two, and in constructing material from Naworks thereunder, the Secretary of the Interior is hereby authorized to tional Forests. 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. SILVICULTURE. TIMBER SALES. Timber sales provisions of act June 4, 1897 (30 Stat, 11, 35), as amended by act June 6, 1900 (31 Stat., 661). Timber, a p For the purpose of preserving the living and growing timber and promoting the younger growth on forest reservations, the Secretary of praisal and sale. 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 of sale. Emergency of advertisement. 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 sales in advance 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 Private bid is received, or in cases in which the bidder fails to complete the where bid unsatisfactory, etc. 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 California, or to reservations that may be hereafter created within said State].3 3 1 Modified by agricultural appropriation, act of Mar. 4, 1907 (34 Stat., 1270), 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. This proviso is repealed by a provision in the agricultural appropriation act of June 30, 1906 (34 Stat., 669, 684), post p. 60. sale moval. Free use of tim * Such timber before being sold shall be marked and desigCutting and re-nated, 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 Secretary of the Interior may permit, under regulations to be ber, etc., by set-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.1 tlers, etc. ritory. Agricultural appropriation act of March 4, 1907 (34 Stat., 1256). Forest products [1270] And the Secretary of Agriculture may, in his discretion, may be exported from State or Ter-permit timber and other forest products cut or removed from the national forests of the United States, except the Black Hills National Forest in South Dakota,2 to be exported from the State, Territory, or the district of Alaska, in which said forests are respectively situated: Restrictions as Provided, That the exportation of dead and insect-infected timber only from said Black Hills National Forest shall be allowed until such time as the Forester shall certify that the ravages of the destructive insects in said forest are practically checked, but in no case after July first, nineteen hundred and eight. to Black Hills National Forest. Timber sales in California. Minnesota National Forest. Sales to settlers and farmers at cost. This proviso was repeated in the agricultural appropriation acts of May 23, 1908, March 4, 1909, May 26, 1910, and March 4, 1911, except that the time limit fixed in the last line was extended, first to July 1, 1910, and then to July 1, 1912. The old Black Hills National Forest having been divided into the Black Hills and Harney National Forests, the agricultural appropriation act of August 10, 1912 (37 Stat., 269) applies this provision to both, and further extends the time limit to July 1, 1914. Agricultural appropriation act of June 30, 1906 (34 Stat., 669). [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 sixty-one). NOTE. For timber sale provisions relating especially to the Minnesota National Forest (see sec. 2 of the act of May 23, 1908, 35 Stat., 268). Agricultural appropriation 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 64, post, under "Trespass. Forest transfer act of February, 1905 (33 Stat., 628). Fulp wood and SEC. 2. That pulp wood or wood pulp manufactured from timber in wood pulp may the district of Alaska may be exported therefrom. be exported from Alaska. 1 Modified by agricultural appropriation act of Mar. 4, 1907 (34 Stat., 1270), printed next following. This does not prevent the Secretary of Agriculture from causing tree seeds to be collected in the Black Hills Nationa Forest for the use of the Forest Service in seeding and planting in other States. The prohibition does not apply to governmental uses. (1 Sol. Op., 424.) Tariff act of June 29, 1909, free list, paragraph 652 (36 Stat., 11, on p. 78). trees, 652. Plants, trees, shrubs, roots, seed cane, and seeds imported by Plants, the Department of Agriculture or the United States Botanic Garden. etc., imported Agricultural appropriation act of August 10, 1912. 37 Stat., 269 (Nebraska National Forest.) free. tional Forest. Provided, That from the nurseries on said forest the Secretary of Nebraska NaAgriculture, 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 hun dred and four. DECISIONS APPLICABLE TO TIMBER SALE CONTRACTS. 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. (Same.) 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. (Same.) 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. (Same.) 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.) Where a railroad right of way stipulation provides for payment for "merchantable" timber cut from the right of way, and expressly declares that "All timber down to the diameter of 4 inches shall be considered merchantable," the Secretary of Agriculture has no authority to modify the contract so as to require payment only for timber down to 6 inches in diameter. (2 Sol. Op., 744.) Where, before expiration of a timber sale contract, the purchasers notify the forestry officials that they have sold their saw mill 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 remaining 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 stumping 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. The Forest Service is not authorized to sell fire-killed timber upon homesteads, or to enter into an agreement with homesteaders to sell the timber to purchasers and deposit the proceeds in the Treasury to be refunded upon the patenting of the claim. (1 Sol. Op., 327.) There is no authority to make an agreement permitting an assignee of the Northern Pacific Railroad Co. to cut over lands covered by an unperfected selection under the act of March 2, 1899 (30 Stat., 993); at his own risk, upon filing a bond to indemnify the Government should such selection fail (1 Sol. Op., 463).. Neither the Northern Pacific Railroad Co. nor the Forest Service, nor the two acting together under agreement, can legally dispose of timber upon unsurveyed unclassified odd sections within the primary limits of the railroad grant. (1 Sol. Op., 327.) A mining claim properly marked upon the ground is presumed to be valid until its validity is determined by the Interior Department in a proper proceeding and the Forest Service can not sell timber from such a claim merely because it appears to the Forest Service to be invalid. (1 Sol. Op., 181.) GRAZING. There are no statutes specifically relating to grazing upon the National Forests. The grazing regulations are based on the provision in the act of June 4, 1897 (30 Stat., 11, 35), which reads as follows: The Secretary of the Interior shall make provisions for the protecagainst fire, etc. tion against destruction by fire and depredations upon the public forests Provisions for protection Rules and regu lations. and forest reservations which may have been set aside or which may DECISIONS APPLICABLE TO GRAZING. The Secretary of Agriculture has the authority to make a charge for the use of lands in a National Forest for grazing (United States v. Grimaud et al., 220 U. S., 506, 522). The usual grazing permit constitutes merely a license revocable at the discretion of the Secretary of Agriculture. (2 Sol. Op., 895.) A person who has secured a waiver of grazing privileges in his favor cannot rely on the prior issuance of a permit to the person from whom he purchased as creating an estoppel against the Government to cancel the permit, there being no mutuality between the Government and. such transferee. (Same.) The Forest Service may collect the usual kidding or lambing charge for kidding or lambing on an unperfected mining claim within a National Forest where the claimant waives his right to exclusive possession under the mining laws. (2 Sol. Op., 865.) For decisions relating to grazing trespasses, see "Trespass, grazing," post, p. 72. TRESPASSES. TIMBER TRESPASSES. CRIMINAL CODE OF MARCH 4, 1909 (36 STAT., 1088, 1098). SEC. 49. Whoever shall cut, or cause or procure to be cut, or shall wantonly destroy, or cause to be wantonly destroyed, any timber growing on the public lands of the United States; or whoever shall remove, or cause to be removed, any timber from said public lands, with intent to export or to dispose of the same; or whoever, being the owner, master, or consignee of any vessel, or the owner, director, or agent of any railroad, shall knowingly transport any timber so cut or removed from said lands, or lumber manufactured therefrom, shall be fined not more than one thousand dollars, or imprisoned not more than one year, or both. Nothing in this section shall prevent any miner or agriculturist from clearing his land in the ordinary working of his mining claim, or in the preparation of his farm for tillage, or from taking the timber necessary to support his improvements, or the taking of timber for the use of the United States. And nothing in this section shall interfere with or take away any right or privilege under any existing law of the United States to cut or remove timber from any public lands. SEC. 50. Whoever shall unlawfully cut, or aid in unlawfully cutting, or shall wantonly injure or destroy, or procure to be wantonly in ured or destroyed, ary tree, growing, standing, or being upon any land of the United States which, in pursuance of law, has been reserved or purchased by the United States for any public use, or upon any Indian reservation, or lands belonging to or occupied by any tribe of Indians under the authority of the United States, or any Indian allotment while the title to the same shall be held in trust by the Government, or while the same shall remain inalienable by the allottee without the consent of the United States, shall be fined not more than five hundred dollars, or imprisoned not more than one year, or both. (As amended by act June 25, 1910, 36 Stat., 855, 857.) SEC. 51. Whoever shall cut, chip, chop, or box any tree upon any lands belonging to the United States, or upon any lands covered by or embraced in any unperfected settlement, application, filing, entry, Penalty. Vol. 25, p. 166. R. S., sec. 5388, |