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28 



FORESTRY AND IRRIGATION. 



August, 



ILLEGAL SHEEP GRAZING IN THE SIERRA FOREST 

 RESERVE, YET WITH A COLOR OF . 

 LEGAL RIGHT. 



By John D. Leland, 

 Division of Forestry, General Land Office. 



MANY complaints have been made 

 that sheep were trespassing in the 

 -Sierra Forest Reserve, in California, to 

 the great detriment of the reserve and 

 to interests dependent thereon. Alle- 

 gations have been made that the De- 

 partment of the Interior did not enforce 

 the rules and regulations prohibiting 

 sheep from grazing in this reserve, and 

 more or less odium has been cast upon 

 the officers in charge of the matter. It 

 is but just and fair that the general 

 public, the people of California, and 

 the employes of other branches of the 

 public service, who discover the sheep 

 in the reserve, shall be advised as to 

 the responsibility for the large number 

 of sheep that are from time to time 

 fovmd roaming over this reserve. 



After having received petitions signed 

 by hundreds of residents and citizens liv- 

 ing along the borders of the Sierra Poor- 

 est Reserve, the value of wdiose property 

 depends largely upon the amount of wa- 

 ter available for irrigation, and much 

 convincing evidence that sheep grazing 

 in the reserve was a detriment to it and 

 to a great majority of the interests de- 

 pending thereon, the Secretary of the 

 Interior issued an order prohibiting 

 sheep grazing therein. This order was 

 issued under authority of the act of 

 June 4, 1897 (30 Stat., 34-36), which 

 provides that : 



' ' The Secretary of the Interior shall 

 make provisions for protection against 

 destruction by fire and depredations 

 upon the public forests and forest res- 

 ervations which may have been set 

 aside or which may be hereafter set 

 aside under the said act of March 3, 

 i8gr, and which maybe continued; and 

 he may make such rules and regulations 

 and establish such service as will insure 

 the objects of such reservations, namely, 



to regulate their occupancy and use and 

 to preserve the forests thereon from de- 

 struction ; and any violation of the pro- 

 visions of this act or such rules and 

 regulations, shall be punished as is pro- 

 vided for in the act of June 4, 1888, 

 amending section 5388 of the Revised 

 Statutes of the United States." 



In response to an inquiry by the Sec- 

 retary of the Interior as to whether a 

 criminal prosecution to punish a person 

 who grazes sheep in a forest reservation 

 in violation of an order prohibiting the 

 grazing was sustainable, the Attorney 

 General approved the opinion of the 

 Solicitor General in which he stated that 

 such a prosecution would be sustained. 

 The Solicitor General said: 



"Any violation of such rules and reg- 

 ulations is, by statute, made an offense 

 punishable as provided in section 5388. 

 By this law the control of the occupancy 

 and use of these reserv^ations is handed 

 over to the Secretary for the purpose of 

 preserving the forests thereon, and any 

 occupancy or use in violation of the 

 rules and regulations adopted by him is 

 made punishable criminally. It seems 

 to me Congress has a right to do that. 

 Suppose Congress had provided that the 

 occupation or use of a forest reser\'ation 

 by any person without permission of 

 the Secretary should be a misdemeanor. 

 Would not this be a valid exercise of 

 legislative power ? The present statute 

 does no more. The regulation is rea- 

 sonable and necessary. It restrains no 

 one in the enjoyment of any natural or 

 legal right. To use the language of 

 Chief Justice Fuller In re Kollock (165 

 U. S., 526, 533): 



' ' ' The regulation was in execution 

 of or supplementary to, but not in con- 

 flict with, the law itself, and was spe- 

 cifically authorized thereby in effectua- 



