582 



FORESTRY AND IRRIGATION 



December 



stand precisely as before. The legal 

 question involved was simply this : 

 Does the law authorizing the Secretary 

 of Agriculture to issue regulations 

 make the breach of those regulations 

 a crime? 



Judge Whitson's decision merely an- 

 swered this question "No." It was in 

 substance that the objection to the in- 

 dictment against Walter Matthews 

 was the absence of a law defining the 

 act therein charged as a criminal of- 

 fense. Upon that ground the court 

 held that the demurrer must be sus- 

 tained and the defendant discharged. 



Though the point was simple and 

 clear enough, it was entirely miscon- 

 strued in the press reports of the de- 

 cision and in editorial comments upon 

 it. For instance, in the Wyoming Tri- 

 bune of Tuesday. November 6, news 

 of Judge Whitson's action was given 

 under the headlines : "Grazing Fees 

 Illegal Decides Federal Judge," and 

 the article declares that "As a result 

 of the decision. Matthews, who en- 

 tered the Mount Rainier Forest Re- 

 serve without the permit required by 

 the Secretary, is still using the reserve 

 and is not paying the fee imposed by 

 the Secretary." As a matter of fact, 

 Mr. Matthews's sheep were immedi- 

 ately removed upon notice by the for- 

 est officers and have not since entered 

 the reserve. 



In the Sheridan. Wyo., Post it is 

 said : "A decision fraught with impor- 

 tance to Wyoming stockmen is that ap- 

 pearing in this issue, wherein it is held 

 by the United States District Court 

 that the collection of fees for grazing 

 live stock is illegal. :: ::: :;: Since its im- 

 position this fee has been regarded as 

 illegal and arbitrary by many well-in- 

 formed Wyoming people, and the 

 views expressed by the court in this 

 decision meet with general approval 

 here. * * * The litigant is still running 

 his sheep on the Rainer Reserve with- 

 out paying the fees." 



Decisions like Judge Whitson's had 

 before been made by the federal courts 

 in three other districts, one of them 

 six years ago, but none of these inter- 

 feres in the slightest with the right of 



the United States to institute civil ac- 

 tion against trespassers violating the 

 grazing regulations, or with charging 

 the grazing fee. The United States 

 Circuit Court of Appeals for the Ninth 

 Circuit decided definitely, in the case 

 of Dastervignes vs. United States, that 

 the provisions of the act of March 4, 

 1897, delegating to the Secretary the 

 power to make regulations, is consti- 

 tutional, that the regulation prohibit- 

 ing the pasturing of sheep on forest 

 reserves without a permit is valid, and 

 that the federal courts will enforce the 

 regulation by injunction. The Su- 

 preme Court of Arizona, three judges 

 sitting, in the case of Dent vs. United 

 States (76 Pacific Reporter, 455), 

 went still further, under circumstances 

 which made the decision most em- 

 phatic. Dent was criminally prose- 

 cuted for grazing sheep on a forest 

 reserve without a permit, in violation 

 of the regulations, and the court had 

 held that his act was not a crime ; but 

 as soon as the Dastervignes case was 

 decided for the Government the Ari- 

 zona court granted a rehearing of the 

 Dent case and held that the Daster- 

 vignes decision was binding on all 

 courts in the Ninth Circuit in criminal 

 as well as civil cases, and that Dent 

 was therefore guilty of a crime. 



So far. therefore, the court decis- 

 ions as to the criminality of trespass 

 contrary to the forest-reserve regula- 

 tions are conflicting. Final adjudica- 

 tion of the point can not be had until 

 the ruling of a higher court has been 

 secured : but no court has questioned 

 the right of the Secretary of Agricul- 

 ture to make regulations and to re- 

 cover damages for trespass through 

 civil action. 



Grazing trespassers will be re- 

 strained from violation of the regu- 

 lations by injunction proceedings and 

 sued for civil damages until the higher 

 courts shall have reached a decision 

 as to the criminal character of such 

 trespasses. The Forest Service will 

 continue to exclude unpermitted stock 

 from all forest reserves and to collect 

 grazing fees for all stock under per- 

 mit. 



