Act of 1960 constitute "a recognition of past 

 administrative construction." 25 The court 

 cited the Senate Report accompanying the 

 MU-SY Act which states, "the authority to 

 administer recreation and wildlife habitat re- 

 sources of the National Forests has been rec- 

 ognized in numerous appropriation acts and 

 comes from the authority contained in the 

 Act of June 4, 1897, to regulate the 'occu- 

 pancy and use' of the National Forests." The 

 court determined that "the regulations are 

 valid" and that "the choice of what shall be 

 preserved is an administrative choice in which 

 geographical and topographical considerations 

 are certainly germane but hardly subject to 

 judicial review." 26 



In its judgment, therefore, the court ac- 

 knowledges the authority of the Forest Service 

 to administer the National Forest lands, with- 

 out regard to any priorities claimed to be es- 

 tablished in the 1897 Act, even though timber 

 and water purposes are required for creation 

 of a National Forest. It suggests that the agen- 

 cy will meet the letter of the law with respect 

 to administration even if other resource uses 

 sometimes take priority over timber and wa- 

 ter or even exclude them from consideration. 

 The court thus recognizes a distinction be- 

 tween establishment and regulation. The ma- 

 jor consideration is to be whether the regula- 

 tions serve to protect the forest. The earlier 

 court findings were not quite so explicit on 

 this issue, and as a result, there has been much 

 misunderstanding among the various inter- 

 ested parties. The period between the passage 

 of the 1897 Act and the present must be 

 viewed as evolutionary, although intermittent 

 court decisions leave the question open to 

 some debate. In no case uncovered by this 

 author do the early judicial proceedings di- 



Whether or not this administrative construction 

 was in fact consistent has been the subject of debate, 

 as will be discussed in a later section on the MU-SY 

 Act. There is evidence, however (Bayles 1964, p. 

 115), that such constructions are not necessarily 

 binding. 



26 This last opinion by the court concerning what 

 is and what is not subject to judicial review was sub- 

 stantially altered in the decision in the Overton Park 

 Case, 1971. See p. 32, below. 



rectly contradict the interpretation in the 

 McMichael case. 



Forest Service Direction 

 in the Early Years 



A review of the principal laws enacted pri- 

 or to 1960 relating to the establishment and 

 administration of the Forest Service similarly 

 fails to inform the researcher as to priorities 

 within the framework of goals. 



The Transfer Act of 1905 



The Transfer Act of February 1, 1905 27 

 included among its provisions the seeds of de- 

 centralization and reliance on local authority 

 that characterize the Forest Service. It stated 

 that "when practicable" forest supervisors 

 and rangers were to be selected "from quali- 

 fied citizens of the States or Territories in 

 which the national forests respectively, are 

 situated." A recent publication of the Forest 

 Service argues that this provision is not in the 

 best interest of the general public. It has been 

 Forest Service practice to give its employees 

 experience on various forests so that they will 

 encounter many differing ecological subsys- 

 tems and forest management problems. The 

 Service now argues, in the face of consider- 

 able criticism of the practice, that to follow 

 the earlier provision more closely would lead 

 to "narrow" training of its forest managers. 28 



The 1905 Act also stipulated that "rights 

 of way for construction and maintenance of 

 dams, reservoirs, water plants, ditches, flumes, 

 pipes, tunnels, and canals" were to be allowed 

 within the National Forests for municipal and 

 mining purposes, but they were to be subject 

 to "such rules and regulations as may be pre- 

 scribed by the Secretary of the Interior." 



The Pinchot Letter 



The famous "Pinchot Letter," signed by 



27 33 Stat. 628; 16 U.S.C. 472, 524, 554. 



2 8 USDA Forest Service. Timber management for a 

 quality environment. Current Information Report 

 No. 6, 1971, p. 27. For somewhat different com- 

 ments, see 91st Congr. 2d Sess., Senate Document 

 No. 91-115, A university view of the Forest Service, 

 often referred to as the "Bolle Report," p. 18; see al- 

 so USDA Forest Service (1971), p. 72. 



17 



