Jan. 28, 1911.] 
FOREST AND STREAM 
125 
GRAZING ON THE NATIONAL FORESTS 
The authority of the Secretary of Agricul¬ 
ture to prevent the grazing of livestock on the 
National Forests without a permit has been 
sustained in New Mexico by action of the 
Federal courts in three cases in which the de¬ 
fendants had caused or permitted stock to 
trespass upon the Alamo Forest in defiance of 
the regulations. 
Because of the belief which has been current 
among stockmen of some localities during the 
last year that the regulations of the Secretary 
of Agriculture with regard to grazing on the 
National Forests are unenforceable, the New 
Mexico cases are regarded by officials of the 
Department of Agriculture as particularly 
timely and valuable. The recent disposition to 
question the validity of the regulations has evi¬ 
dently been due to the entirely natural desire 
of the stockmen to assert what they supposed, 
though mistakenly, to be their rights under the 
law as interpreted by_the courts. Secretary 
Wilson considers that the effect of the action 
taken in the New Mexico cases will be to 
clarify the situation materially, and to promote 
a better understanding of the legal rights of 
the department. 
The misconception which has led stockmen to 
suppose they might graze their stock on the 
National Forests without taking out a permit 
and paying the grazing fee was due to the 
decision rendered by the Supreme Court of the 
United States last March, affirming a decision 
of the United States district court for the south¬ 
ern district of California, by Judge Wellborn, 
that violation of the grazing regulations is not 
punishable as a crime. This decision of the 
Supreme Court, however, was by an even di¬ 
vision of the Justices, and therefore did not de¬ 
cide the general question one way or the other, 
but merely affirmed the decision of the lower 
court in the particular case. The Supreme 
Court has granted a rehearing of the case, in 
order that the question may be passed upon by 
a full bench and authoritatively settled, and this 
rehearing will soon take place. But the author¬ 
ity of the secretary to prevent grazing except 
in accordance with his regulations does not, it 
is pointed out, depend upon affirmation of the 
power of the Government to punish violation of 
the regulations as a crime. This is made clear 
by the action in two of the New Mexico cases * 
while the third case illustrated the fact that the’ 
affirmation of Judge Wellborn’s decision by the 
Supreme Court has no binding force in cases 
other than the particular one then before the 
court. 
In the cases of Sam Cope and S. O. Cope, de¬ 
fendants, and of G. W. Jernigam, defendant, 
injunctions were granted by the Federal dis¬ 
trict court to prevent the continued grazing of 
stock owned by the defendants upon the Na¬ 
tional Forests. The ground upon which these 
injunctions were granted was not the power of 
the Government to punish violators of the 
regulations through criminal procedure, but 
was the right of the Government to bring 
action against the owners of stock which tres¬ 
pass upon the property of the Government. In 
the Cope case punitive damages were imposed 
by the court for wilful trespass, in addition to 
an award of $75 for actual damages sustained 
the amount of the actual damage was deter¬ 
mined by the finding of the court that the value 
ot the grazing privilege in the Alamo National 
h orest was $1.50 per year for each head of 
cattle or horses. 
This case is the more decisive as to the 
authority of the secretary to enforce the graz¬ 
ing regulations from the fact that an attempt 
to proceed against the defendants criminally 
had failed because of the refusal of the grand 
jury t? bring an indictment against them. In 
the third of the New Mexico cases, however 
such an indictment was found by the grand 
jury against J. W. Van Winkle, for hiving 
grazed 1.000 head of goats upon the Alamo Na- 
Jw without a permit. As a result of 
this indictment Van Winkle was arrested at 
^ m K 0g ° r ?° by a ? eput y Urnted States marshal. 
°p er , f ° r appearance at the April 
term of the Federal court. 1 
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