One may conclude that the hopelessness of ef- 

 fectively protecting the public timberlands by 

 the use of a small army of investigating agents 

 who were ostracized by local society, upbraided 

 by the local press and by the Representatives 

 and Senators of the West, and the fact that 

 their enforcement efforts were nullified by 

 hostile juries, contributed to the realization at 

 least among scientists that only through a posi- 

 tive program of Federal forest land manage- 

 ment could a part of the remaining public for- 

 ests be Soth withheld and protected for future 

 use. 



As a result of considerable ferment that 

 centered around a discussion of forest prac : 

 tices, Congress enacted on March 3, 1891, the 

 General Revision Act, section 24 of which 

 (the so-called Forest Reservation Amend- 

 ment) has since come to be known as the Cre- 

 ative Act of 1891. 8 As amended by later stat- 

 utes, the act gave the President authority to 

 "set apart and reserve, in any State or Terri- 

 tory having public lands wholly or in part 

 covered with timber or undergrowth, whether 

 of commercial value or not, [such lands] as 

 national forests . . . ." Subsequent acts placed 

 restrictions on the authority to create Nation- 

 al Forests or additions within certain states. 

 Legislation also gave authority to the Secre- 

 tary of Agriculture to acquire forested lands 

 by purchase, exchange, donation, and other 

 methods. 9 In the Transfer Act of February 1, 

 1905, 1 jurisdiction over the National Forests 

 was transferred from the Department of In- 

 terior to the Department of Agriculture. 



The Act of 1897 



It_ is now possible to identify within the 

 enabling legislation the explicit and implicit 

 objectives specified by Congress to guide the 

 managerial functions of the Forest Service. To 



8 26 Stat. 1103; as amended by Acts of March 4 

 and June 7, 1924, 43 Stat. 655; 16 U.S.C. 471. 



9 For a list of important laws relating to the 

 establishment of National Forests, as amended, see 

 USDA Forest Service (1964), p. 1-11. 



10 33 Stat. 628; 16 U.S.C. 472, 524, 554. Laws re- 

 lating to surveying, prospecting, locating, appropriat- 

 ing, entering, relinquishing, reconveying, certifying, 

 or patenting were not subject to transfer and are still 

 administered by the Secretary of Interior. Included 

 here, of course, are the laws pertaining to mining 

 activity within the National Forest. The resulting in- 

 terdepartmental struggle has affected the practices 

 and policies of both departments. 



determine whether or not the legislation es- 

 tablishes priorities, let us examine first the 

 original enabling legislation — the Organic Ad- 

 ministration Act of 1897." It stated in part. 



All public lands ... set aside and re- 

 served as National Forests . . . shall be as 

 far as practicable controlled and adminis- 

 tered in accordance with the following 

 provisions. No National Forest shall be 

 established, except to improve and pro- 

 tect the forest within the boundaries, or 

 for the purpose of securing favorable 

 conditions of water flow and to furnish a 

 continuous supply of timber for the use 

 and necessities of citizens of the United 

 States; but it is not the purpbse or intent 

 of these provisions or of the Act provid- 

 ing for such reservations, to authorize 

 the inclusion therein of lands more valu- 

 able for the mineral therein, or for agri- 

 cultural purposes, than for forest 

 purposes .... The Secretary of Agricul- 

 ture shall make provisions for the protec- 

 tion against destruction by fire and dep- 

 redation upon the public forests and 

 National Forests . . . and he may make 

 such rules and regulations and establish 

 such service as will insure the objects of 

 such regulations, namely, to regulate 

 their occupancy and use and to preserve 

 the forest thereon from destruction .... 



The first section of the act has provided 

 ammunition to one side in a continuing de- 

 bate over the original establishment of priori- 

 ties. They see the Act of 1897 as identifying 

 three top-priority or "dominant" purposes of 

 forest management: forest protection and im- 

 provement, protection of waterflow, and tim-^ 

 ber supply. 12 All other uses, products, or 

 services of the forest, according to this view, 

 are to be considered secondary or subordi- 

 nate. It is important to determine whether or 

 not this original legislation legally implies 



"Act of June 4, 1897, 30 Stat. 34, 35, 36; 16 

 U.S.C. 475; emphasis added. 



12 The following discussion relies heavily upon the 

 work done by J. Michael McCloskey (1961). His con- 

 clusions as to interpretation, however, differ greatly 

 from those presented in this study. 



13 



