value.

[Before such sale shall take place, notice thereof shall be given Timber to be * *** for not less than thirty days, by publication in one or more sold only after advertisement. newspapers of general circulation, as he may deem necessary, in the State or Territory where such reservation exists: Provided, however, Emergency That in cases of unusual emergency the Secretary of the Interior sales. may, in the exercise of his discretion, permit the purchase of timber and cord wood in advance of advertisement of sale 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 Sales of timber further, That he may, in his discretion, sell without advertisement, in of less than $100 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 where bid is unsatisfactory bid is received, or in cases in which the bidder fails to satisfactory. 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:] Such timber before being sold, shall be marked and designated, and shall be cut and removed under the supervision designated and of some person appointed for that purpose by the Secretary of the vision. 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 matter in brackets in the above section is taken bodily from the act of June 6, 1900 (31 Stat., 661), and, since the passage of the agricultural appropriation act of June 30, 1906 (34 Stat., 669), is the timber sale law for all National Forests, except as modified by the act of Feb. 1, 1905 (33 Stat., 628), transferring the jurisdiction of the National Forests to the Secretary of Agriculture.)

The Secretary of the Interior may permit, under regulations to be 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.

Private sales be may

made

Timber to be

cut under super

Free use of timber and stone.

Ingress

and egress of settlers.

[36] Nothing herein shall be construed as prohibiting the egress or ingress of actual settlers residing within the boundaries of such reservations, or from crossing the same to and from their property or homes; and such wagon roads and other improvements may be constructed thereon as may be necessary to reach their homes and to utilize their property under such rules and regulations as may be prescribed by the Secretary of the Interior. Nor shall anything herein prohibit any person from entering upon such forest reservations for all proper and lawful purposes, including that of prospecting, locating, and develop- Prospecting, ing the mineral resources thereof: Provided, That such persons comply with the rules and regulations covering such forest reservations.

(The paragraphs in this act providing for lieu selection were repealed by the act of Mar. 3, 1905, 33 Stat., 1264.)

etc.

tional Forests.

The settlers residing within the exterior boundaries of such forest Schools and reservations, or in the vicinity thereof, may maintain schools and churches in Nachurches within such reservation, and for that purpose may occupy any part of the said forest reservation, not exceeding two acres for each schoolhouse and one acre for a church.

The jurisdiction, both civil and criminal, over persons within such reservations shall not be affected or changed by reason of the existence of such reservations, except so far as the punishment of offenses against the United States therein is concerned; the intent and meaning of this provision being that the State wherein any such reservation is situated

1 While it is no doubt within the power of Congress to prevent intrusion upon the National Forests for the purposes of taking fish and game, yet in view of the long-established policy by which the public domain has been opened for these purposes, it can not be held that the general powers conferred upon the Secretary of Agriculture by the forest administrative act of June 4, 1897, or any other legislation empowers him to prohibit or to make regulations in relation to the taking of fish and game on the National Forests. (23 Op. Atty. Gen., 589; 1 Sol. Op., 78 and 174.)

The fish and game laws of the States and Territories are applicable to National Forest lands and to persons other than Indians on Indian reservations but not to Indians upon their reservations. (1 Sol. Op., 201.)

State jurisdic

tion.

Waters.

Restoration of agricultural lands

shall not, by reason of the establishment thereof, lose its jurisdiction, nor the inhabitants thereof their rights and privileges as citizens, or be absolved from their duties as citizens of the State.

All waters on such reservations may be used for domestic, mining, milling, or irrigation purposes, under the laws of the State wherein such forest reservations are situated, or under the laws of the United States and the rules and regulations established thereunder.1

Upon the recommendation of the Secretary of the Interior, with the to public domain. approval of the President, after sixty days' notice thereof, published in two papers of general circulation in the State or Territory wherein any forest reservation is situated, and near the said reservation, any public lands embraced within the limits of any forest reservation which, after due examination by personal inspection of a competent person appointed for that purpose by the Secretary of the Interior, shall be found better adapted for mining or for agricultural purposes than for forest usage, may be restored to the public domain. And Mineral lands any mineral lands in any forest reservation which have been or which may be shown to be such, and subject to entry under the existing mining laws of the United States and the rules and regulations applying thereto, shall continue to be subject to such location and entry, notwithstanding any provisions herein contained.

open to location and entry.

Temporary

President.

Act of June 25, 1910 (36 Stat., 847), to authorize the President of the United States to make withdrawals of public lands in certain cases.

That the President may, at any time in his discretion, temporarily withdrawals by withdraw from settlement, location, sale, or entry any of the public lands of the United States including the District of Alaska and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes to be specified in the orders of withdrawals, and such withdrawals or reservations shall remain in force until revoked by him or by an act of Congress.2

Mineral explo

sition.

SEC. 2 [as amended by the act of Aug. 24, 1912, 37 Stat., 497]. ration and acqui- That all lands withdrawn under the provisions of this act shall at all times be open to exploration, discovery, occupation, and purchase under the mining laws of the United States, so far as the same apply to metalliferous minerals: Provided, That the rights of any person who, at the date of any order of withdrawal heretofore or hereafter made, is a bona fide occupant or claimant of oil or gas bearing lands and who, at such date, is in the diligent prosecution of work leading to the discovery of oil or gas, shall not be affected or impaired by such order so long as such occupant or claimant shall continue in diligent prosecution of said work: Provided further, That this act shall not be construed as a recognition, abridgment, or enlargement of any asserted rights or claims initiated upon any oil or gas bearing lands after any withdrawal of such lands made prior to June twenty-fifth, nineteen Claims and set- hundred and ten: And provided further, That there shall be excepted from the force and effect of any withdrawal made under the provi

tlements except

ed.

1 Waters flowing over the public domain in natural channels are not the property of the United States or subject to its control or disposition. They are publici juris and are subject, under the Constitution, to the jurisdiction and control of the States, except for purposes of commerce and navigation. The Government can acquire a right to their use for purposes other than navigation only by appropriating them under the provisions of State laws. (1 Sol. Op., 590.)

Where, however, the Government, by a treaty made prior to the admission of the State into the Union, has reserved certain waters for the use of an Indian tribe, there is no power in the State to divert them from such uses. (Winters v. United States, 207 U. S., 564.)

Nor can a State, even upon the nonnavigable portions of a stream, authorize any uses which will impair the navigability of the navigable portions. (United States v. Rio Grande Irrigation Co., 174 U. S., 690.)

The waters of mineral, medicinal, and saline springs on the public domain are under the sole control of the United States, as a landowner, and are not subject to appropriation under State laws or to the riparian right to continued flow. (2 Sol. Op., 951.)

2 This act confers upon the President power to withdraw National Forest lands for the purposes therein stated. "Public lands," as used therein, includes National Forest lands. (Informal opinion of Attorney General to Secretary of Agriculture of Nov. 23, 1910.)

The Secretary of Agriculture has no authority to issue a power permit affecting National Forest lands withdrawn under this act for a power site (2 Sol. Op., 817); nor can he make leases, under the act of Feb. 28, 1899, or authorize other uses of lands similarly withdrawn around mineral and medicinal springs in Alaska. (2 Sol. Op., 870.)

sions of this act all lands which are, on the date of such withdrawal, embraced in any lawful homestead or desert-land entry theretofore made, or upon which any valid settlement has been made and is at said date being maintained and perfected pursuant to law; but the terms of this proviso shall not continue to apply to any particular tract of land unless the entryman or settler shall continue to comply with the law under which the entry or settlement was made: And provided further, That hereafter no forest reserve shall be created, nor shall any additions be made to one heretofore created, within the tional Forests in limits of the States of California, Oregon, Washington, Idaho, Montana, Colorado, or Wyoming, except by act of Congress.

No further Na

certain States.

Reports to Con

SEC. 3. That the Secretary of the Interior shall report all such withdrawals to Congress at the beginning of its next regular session gress. after the date of the withdrawals.

LEGISLATION AFFECTING PARTICULAR NATIONAL FORESTS.

Act of October 1, 1890 (26 Stat., 650), setting aside certain lands in California as forest reservations.

Act of February 7, 1905 (33 Stat., 702), to exclude from Yosemite National Park certain lands and attach the same to the Sierra Forest Reserve.

Joint resolution of June 11, 1906 (34 Stat., 831), accepting recession of Yosemite Valley, etc., and changing boundaries of the National Park.

Act of April 28, 1904 (33 Stat., 526), replaced by section 55 of the Penal Code. (See Trespass, p. 67, post.)

Sierra (now in part Stanislaus) National Forest. Same.

Same.

Bull Run National Forest. Minnesota Na

Act of May 23, 1908 (35 Stat., 268), establishing the Minnesota National Forest and containing various special provisions in relation tional Forest. to sales of timber, the preservation of seed trees, the preservation and adjustment of the rights of Indians, etc. See also act of June 27, 1902 (32 Stat., 400).

Act of June 25, 1910 (36 Stat., 855), relating to Indian lands, proviso Same. near bottom of page 862.

The Indian appropriation act of March 3, 1905 (33 Stat., 1048 at p. 1070), authorizes the President to add parts of the Uinta Indian Reservation to the Uinta National Forest.

Act of March 3, 1899 (30 Stat., 1074, 1095), authorized homestead entries by metes and bounds in the Black Hills National Forest by bona fide settlers prior to September 19, 1898.

Act of March 1, 1907 (34 Stat., 1053), grants certain lands in the San Juan National Forest to the city of Durango, Colo., for reservoir purposes, reserving to the Forest Service the right to dispose of the timber on certain parts thereof.

Act of February 18, 1909 (35 Stat., 626), as amended by act of May 7, 1912 (37 Stat., 108), authorizing acquisition of lands in California for a National Forest to be known as the Calaveras Big Tree National Forest. Act of February 28, 1911 (36 Stat., 960), authorizes the exchange of lands in the Kansas National Forest for privately owned lands within its boundaries.

Addition to

National

Uinta

Forest.

Black Hills National Forest.

San Juan National Forest.

Calaveras Big Tree National Forest.

Kansas National Forest.

Act of March 4, 1911 (36 Stat., 1357), authorizes the Secretary of National Forthe Interior to exchange certain desert lands, specifically described, ests in Oregon. for other described lands, within National Forests in Oregon.

Act of July 31, 1912 (37 Stat., 241), authorizes the exchange of certain lands with the State of Michigan and provides the terms on which such exchange may be made.

Act of July 25, 1912 (37 Stat., 200), authorizing Secretary of the Interior to exchange certain lands in Paulina National Forest, Oreg., for private lands within the forest.

Act of August 22, 1912 (37 Stat., 323), authorizes the Secretary of Agriculture to exchange timber in the Pecos National Forest, N. Mex., for privately owned lands within the boundaries of the Zuni National Forest.

The agricultural appropriation act of August 10, 1912 (37 Stat., 269), declares that the Fort Wingate Military Reservation, N. Mex., shall become a part of the Zuni National Forest, subject to unhampered use for military purposes.

Exchange with Michigan.

Paulina National Forest.

Zuni National Forest.

Same.

States author

agreements to

Cooperation with States for fire protection.

Act of March 1, 1911 (36 Stat., 961), to enable any State to cooperate with any other State or States, or with the United States, for the protection of the watersheds of navigable streams, and to appoint a commission for the acquisition of lands for the purpose of conserving the navigability of navigable rivers.

That the consent of the Congress of the United States is hereby given ized to make to each of the several States of the Union to enter into any agreement conserve forests or compact, not in conflict with any law of the United States, with any and water sup- other State or States for the purpose of conserving the forests and the ply. water supply of the States entering into such agreement or compact. SEC. 2. That the sum of two hundred thousand dollars is hereby appropriated and made available until expended, out of any moneys in the National Treasury not otherwise appropriated, to enable the Secretary of Agriculture to cooperate with any State or group of States, when requested to do so, in the protection from fire of the forested watersheds of navigable streams; and the Secretary of Agriculture is hereby authorized, and on such conditions as he deems wise, to stipulate and agree with any State or group of States to cooperate in the organization and maintenance of a system of fire protection on any private or State forest lands within such State or States and situated upon the watershed of a navigable river: Provided, That no such stipulation or agreement shall be made with any State which has not provided by law for a system of forest-fire protection: Provided further, That in no case shall the amount expended in any State exceed in any fiscal year the amount appropriated by that State for the same purpose during the same fiscal year.

Purchase

of

lands to preserve navigability

streams.

of

Appoint ment of commission.

Reports to Congress.

Duties of Secre

ture and Geological Survey.

SEC. 3. That there is hereby appropriated, for the fiscal year ending June thirtieth, nineteen hundred and ten, the sum of one million dollars, and for each fiscal year thereafter a sum not to exceed two million dollars for use in the examination, survey, and acquirement of lands located on the headwaters of navigable streams or those which are being or which may be developed for navigable purposes: Provided, That the provisions of this section shall expire by limitation on the thirtieth day of June, nineteen hundred and fifteen.

SEC. 4. That a commission, to be known as the National Forest Reservation Commission, consisting of the Secretary of War, the Secretary of the Interior, the Secretary of Agriculture, and two Members of the Senate, to be selected by the President of the Senate, and two Members of the House of Representatives, to be selected by the Speaker, is hereby created and authorized to consider and pass upon such lands as may be recommended for purchase as provided in section six of this act, and to fix the price or prices at which such lands may be purchased, and no purchases shall be made of any lands until such lands have been duly approved for purchase by said commission: Provided, That the members of the commission herein created shall serve as such_only during their incumbency in their respective official positions, and any vacancy on the commission shall be filled in the manner as the original appointment.

SEC. 5. That the commission hereby appointed shall, through its president, annually report to Congress, not later than the first Monday in December, the operations and expenditures of the commission, in detail, during the preceding fiscal year.

SEC. 6. That the Secretary of Agriculture is hereby authorized and tary of Agricul- directed to examine, locate, and recommend for purchase such lands as in his judgment may be necessary to the regulation of the flow of navigable streams, and to report to the National Forest Reservation Commission the results of such examinations: Provided, That before any lands are purchased by the National Forest Reservation Commission said lands shall be examined by the Geological Survey and a report made to the Secretary of Agriculture, showing that the control of such lands will promote or protect the navigation of streams on whose watersheds they lie.

Secretary to purchase, consent of State.

SEC. 7. That the Secretary of Agriculture is hereby authorized to purchase, in the name of the United States, such lands as have been approved for purchase by the National Forest Reservation Commission at the price or prices fixed by said commission: Provided, That no deed or other instrument of conveyance shall be accepted or approved by the Secretary of Agriculture under this act until the legislature of the

State in which the land lies shall have consented to the acquisition of such land by the United States for the purpose of preserving the navigability of navigable streams.

Titles obtained

SEC. 8. That the Secretary of Agriculture may do all things necessary to secure the safe title in the United States to the lands to be acquired by Secretary of Agriculture and under this act, but no payment shall be made for any such lands until passed upon by the title shall be satisfactory to the Attorney General and shall be Attorney General. vested in the United States.

Reservations of

erals.

SEC. 9. That such acquisition may in any case be conditioned upon the exception and reservation to the owner from whom title passes to timber and minthe United States of the minerals and of the merchantable timber, or either or any part of them, within or upon such lands at the date of the conveyance, but in every case such exception and reservation and the time within which such timber shall be removed and the rules and regulations under which the cutting and removal of such timber and the mining and removal of such minerals shall be done shall be expressed in the written instrument of conveyance, and thereafter the mining, cutting, and removal of the minerals and timber so excepted and reserved shall be done only under and in obedience to the rules and regulations so expressed.

Sale of agricul

quired.

SEC. 10. That inasmuch as small areas of land chiefly valuable for agriculture may of necessity or by inadvertence be included in tracts tural lands so acacquired under this act, the Secretary of Agriculture may, in his discretion, and he is hereby authorized, upon application or otherwise, to examine and ascertain the location and extent of such areas as in his opinion may be occupied for agricultural purposes without injury to the forests or to stream flow and which are not needed for public purposes, and may list and describe the same by metes and bounds, or otherwise, and offer them for sale as homesteads at their true value, to be fixed by him, to actual settlers, in tracts not exceeding eighty acres in area, under such joint rules and regulations as the Secretary of Agriculture and the Secretary of the Interior may prescribe; and in case of such sale the jurisdiction over the lands sold shall, ipso facto, revert to the State in which the lands sold lie. And no right, title, interest, or claim in or to any lands acquired under this act, or the waters thereon, or the products, resources, or use thereof after such lands shall have been so acquired, shall be initiated or perfected, except as in this section provided.

Lands acquired to be held and ad

forest

SEC. 11. That, subject to the provisions of the last preceding section, the lands acquired under this act shall be permanently reserved, ministered as naheld, and administered as national forest lands under the provisions tional of section twenty-four of the act approved March third, eighteen hun- lands. dred and ninety-one (volume twenty-six, Statutes at Large, page eleven hundred and three), and acts supplemental to and amendatory thereof. And the Secretary of Agriculture may from time to time divide the lands acquired under this act into such specific National Forests and so designate the same as he may deem best for administrative purposes.

SEC. 12. That the jurisdiction, both civil and criminal, over persons upon the lands acquired under this act shall not be affected or changed by their permanent reservation and administration as national forest lands, except so far as the punishment of offenses against the United States is concerned, the intent and meaning of this section being that the State wherein such land is situated shall not, by reason of such reservation and administration, lose its jurisdiction nor the inhabitants thereof their rights and privileges as citizens or be absolved from their duties as citizens of the State.

Jurisdiction of

States.

SEC. 13. That five per centum of all moneys received during any Five per cent of fiscal year from each National Forest into which the lands acquired receipts to States. under this act may from time to time be divided shall be paid, at the end of such year, by the Secretary of the Treasury to the State in which such National Forest is situated, to be expended as the State legislature may prescribe for the benefit of the public schools and public roads of the county or counties in which such National Forest is situated: Provided, That when any National Forest is in more than one State or county the distributive share to each from the proceeds