to both sections simultaneously. McCloskey 

 has argued that a priority ranking is estab- 

 lished, and supports his position by stating 

 that "construction of the use and occupancy 

 section usually requires a definition of the 

 purposes of National Forests and determina- 

 tion of whether a use is implicit in one of 

 these purposes or foreign to them and merely 

 to be tolerated to the extent that it does not 

 conflict with them" (McCloskey 1961, p. 59). 

 Both sections, however, must be considered 

 together, and not one subordinate to the 

 other. To show that the courts have failed to 

 support McCloskey's position we must move 

 ahead to a recent court test. 



McMichael and McMichael v. United States 



The McMichael case 23 (sometimes referred 

 to as the Tote Goat case) is essential to a de- 

 termination of the correct interpretation to 

 be placed on the Act of 1897. It clearly tests 

 the establishment of priorities by the 1897 

 Act. 



Two men who had used and operated 

 "tote goats" (trail bikes) in the Idaho Primi- 

 tive Area on July 9, 1963, had been prose- 

 cuted under regulations of the Secretary of 

 Agriculture prohibiting the use of motor vehi- 

 cles within areas designated as wilderness. 24 

 In their brief presented to the Ninth Circuit 

 Court of Appeals, the appellants argued, 



Even if the regulations constitute valid exercises 

 of the delegated power [they contended that it 

 did not] . . . the application of these regula- 

 tions as is here attempted results in an unconsti- 

 tutional application of the regulations ... in 

 that no Congressional purposes will be achieved 

 by such application . . . and further that the 

 actions of the Secretary of Agriculture in set- 

 ting aside and designating the area in ques- 

 tion . . . [are] arbitrary and capricious in that 

 no stated Congressional purpose is achieved by 

 such designation and promulgation. 



The regulations had been promulgated pur- 

 suant to section 551 of the Act of 1897 grant- 

 ing the Secretary authority to make such rules 

 and regulations as would insure the objects of 

 the reservations. In support of their argument, 



"355 F. 2d 238 (9th Cir., Idaho, 1965). 



24 Secretary's Regulations U-l (36 C.F.R. 251 

 (b)), and U-2 (36 C.F.R. 251.21 (a)). 



the appellants stated that the purposes for 

 which National Forests could be established, 

 as set out in the 1897 Act, were not altered in 

 any way by the provisions of the Multiple 

 Use-Sustained Yield Act of 1960, and that 

 to conform with these purposes even a "wil- 

 derness area" "should be administered [only] 

 in such a fashion as to preserve and protect 

 the forest or the water flow potential there- 

 of." In arguing that the regulations in ques- 

 tion "would seem to serve as a prime example 

 of administrative policy-making in contradic- 

 tion to that of Congress," the appellants 

 stated, 



Since the power to make regulations is adminis- 

 trative in nature, legislation may not be enacted 

 under the guise of its exercise by issuing a 

 "regulation" which is out of harmony with, or 

 which alters, extends, or limits, the statute be- 

 ing administered, or which is inconsistent with 

 the expression of lawmakers' intent in other 

 statutes. The administrative officer's power 

 must be exercised within the framework of the 

 provision bestowing regulatory powers on him 

 and the policy of the statute which he adminis- 

 ters. He cannot initiate policy in the true sense, 

 but must fundamentally pursue a policy prede- 

 termined by the same power from which he de- 

 rives his authority. 



Administrative regulations which go beyond 

 what the legislature has authorized are void and 

 may be disregarded. 



The court review stated that the "appel- 

 lants' position is that regulations establishing 

 primitive, wilderness, and wild areas and pro- 

 viding limitations upon the use to be made of 

 such areas are not authorized by Section 551" 

 because the section specifies that any regula- 

 tion must have the purpose of preserving the 

 forest from destruction. The lines are drawn. 

 We have here a specific question as to the in- 

 terpretation to be placed on the meaning and 

 intent of the legislation. 



The court further stated, 



The consistent administrative interpretation of 

 section 551, however, has been that while recre- 

 ational considerations alone will not support 

 the establishment of National Forest, they are 

 appropriate subjects for regulation. Congress 

 has tacitly shown its approval of this interpreta- 

 tion by appropriating the sums required for its 

 effectuation. 



The court concluded that the provisions 

 contained in the Multiple Use-Sustained Yield 



16 



