NATIONAL FOREST WORK 



253 



land prior to the creation of the forest, an ad- 

 ditional area sufficient to complete the home- 

 stead entry may be allowed upon proper ap- 

 plication." 



>g % % 



Grazing Trespass on National Forests Still 

 Criminally Actionable 



The enforcement of the grazing regulations 

 on the national forests is not affected by the 

 recent decision of the Supreme Court of the 

 United States, affirming the decision of Dis- 

 trict Judge Wellborn, of California. The 

 position of the Secretary of Agriculture is 

 set forth by Associate Forester Potter in the 

 following letter to the District Forester at 

 San Francisco : 



"The decision of the United States District 

 Court for the southern district of California 

 in the case of the United States against Caza- 

 jous, Grimaud, and Inda has been affirmed 

 by the Supreme Court of the United States 

 by an even division of justices, there being 

 four for affirmance and four against, the 

 ninth member of the court not sitting. No 

 written opinion was rendered, and could not 

 be, in the nature of the case, because of the 

 even division of the justices. Being evenly 

 divided, the decision of the Supreme Court 

 merely means an affirmance of the decision 

 of the lower court in these particular cases, 

 without any binding force in any subsequent 

 cases that may arise for violation of the 

 regulations of the Secretary of Agriulture 

 governing grazing on the national forests. 

 Therefore, you will continue the enforcement 

 of the law and regulations and take the same 

 action regarding any violations thereof as 

 heretofore. 



"In the event of a trespass case occurring 

 in your district in which the circumstances 

 are similar to those involved in these cases, 

 you should proceed in accordance with the 

 instructions relating to criminal trespass and 

 if, upon presentation of the facts by the 

 United States Attorney, the grand jury finds 

 an indictment, and upon demurrer the decis- 

 ion of the court is in favor of the defendants, 

 the United States Attorney will be instructed 

 to remove the case to the Supreme Court of 

 the United States for review. When the case 

 reaches the Supreme Court, there will proba- 

 bly be a full bench and a final and authori- 

 tative decision of this court will be rendered." 

 In the decision rendered by Judge Well- 

 born sustaining the demurrer in the cases of 

 Cazajous, Grimaud, and Inda, he did not 

 question the right of the Secretary of Agri- 

 culture to control grazing upon the national 

 forests, nor his right to prohibit any unper- 

 mitted grazing. That the Secretary has_such 

 authority had been expressly held by a higher 

 court, the United States Circuit Court of Ap- 

 peals of the Ninth Circuit, sitting at San 

 Francisco, both in the case of Shannon vs. 

 U. S. (120 Fed. Rep., 70), and in the earlier 

 case of Dastervignes vs. U. S. (122 Fed. Rep., 

 30). Indeed, the authority of those decisions 



was expressly recognized by Judge Wellborn. 

 These cases were, however, civil cases in 

 which the United States was granted injunc- 

 tions restraining the defendants from grazing 

 trespass upon forest reservations, while the 

 cases of Cazajous, Grimaud, and Inda, de- 

 cided by Judge Wellborn at Fresno, were 

 criminal prosecutions. 



Judge Wellborn held that while the Sec- 

 retary of Agriculture has full authority under 

 existing laws of Congress to promulgate reg- 

 ulations prohibiting grazing upon national 

 forests except under permits, and while the 

 forests can be protected against any violation 

 of such regulations, by the bringing of civil 

 actions and suits for injunction, still a viola- 

 tion of the regulations cannot be held to be 

 a crime. In other words, the decision of 

 Judge Wellborn did not question the right of 

 the Secretary of Agriculture to enforce by 

 civil process proper observance of the grazing 

 regulations, but held merely that violations of 

 the regulations could not be made the basis 

 of criminal action. 



Under the Criminal Appeals Act of March 

 2, 1907 (34 Stat, 1246), the Attorney General 

 has instructed the United States Attorney at 

 Los Angeles to sue out writs of error at 

 once and have Judge Wellborn's decision _ re- 

 viewed by the Supreme Court of the United 

 States. This is the first opportunity the gov- 

 ernment has had to obtain a ruling upon this 

 question by the Supreme Court. The appeal 

 will be prosecuted to as early a decision as 

 possible. 



Judge Wellborn's ruling is directly contrary 

 to decisions by the following courts, which 

 have held that violations of the Secretary's 

 regulations are criminal and may be the sub- 

 ject of criminal prosecution: 



U. S. District Court, District of Idaho, in 

 the case of U. S. vs. Domingo (152 Fed. Rep., 

 566), decision by Judge Beatty, March 14, 

 1907; 



U. S. District Court, Northern District of 

 California, in the case of U. S. vs. Dequirro 

 (152 Fed. Rep., 568), decision by Judge De- 

 Haven, October 2, 1906 ; 



U. S. District Court, South Dakota, in the 

 case of U. S. vs. Bale (156 Fed. Rep., 687). 

 decision by Judge Carland, September 3, 



1907: 



The Supreme Court of Arizona, in the case 

 of Dent vs. U. S. (76 Pac. Rep., 455). opinion 

 by Chief Justice Kent ; 



United States Attorney-General, John W. 

 Griggs, also held (22 Opinions of Attorneys- 

 General, 266) that any violation of the graz- 

 ing regulations constitutes a crime and may 

 l)e prosecuted and punished as such. 



As heretofore, the grazing regulations will 

 continue to be vigorously enforced upon every 

 forest. Any willful violation will be at once 

 reported by the forest officers and prompt 

 action will be taken. Past experience has 

 shown that only upon very rare occasions 

 indeed is court action necessary. The ac- 

 knowledged justice and propriety of the graz- 



