# Looters of the Public Domain/Chapter 22

Chapter XXII
ALL the salient features of the Blue Mountain Forest Reserve conspiracy are embodied in an indictment returned February 13, 1905, by the Federal Grand Jury of Oregon, charging John H. Mitchell, Binger Hermann, John N. Williamson, Franklin P. Mays, Williard N. Jones, and George Sorenson with a violation of Section 5440 of the United States Revised Statutes. Mays, Jones and Sorenson were convicted September 13, 1906, for their part in the alleged plot to cheat the Government out of a large portion of its lands, while Hermann and Williamson are yet to be tried.
The defendants were accused of having entered into a conspiracy to defraud the United States out of the possession and use of thousands of acres lying in different States and Territories, by means of a fraudulent plan contemplating the obtaining of title, in the first instance, to about 44,000 acres of State school lands in Crook, Grant, Harney, Malheur, Baker, Union, Umatilla and Wallowa Counties, Oregon, through the use of illegal affidavits and applications, and the subsequent inclusion of such school lands in the Blue Mountain Forest Reserve, thus creating the possibility of their use as a base in exchange for valuable timber lands under the lieu land Act of June 4, 1897.
The story of the conspiracy, if given in all its glaring details, would sound like some astounding tale of fiction. It would show how men of national reputation and political renown had affiliated in a brotherhood of corruption with some of the lowest elements of humanity in an effort to profit by the spoils of a gigantic steal, and if all the facts were made known, they might sound even greater depths of degradation than were reached during the trial.
The idea of creating the Blue Mountain Forest Reserve originated in the shrewd minds of those who saw in President Roosevelt's well-defined policy of preserving the remaining timber of the country for the benefit of future generations a chance to further their own selfish interests. They were aware that nothing would appeal to the Nation's chief executive with such vivid force as the plan to embrace a large area in Eastern Oregon in an immense reserve. On its face it was a legitimate proposition, because the necessity actually existed for measures of protection of this character, inasmuch as there was danger of an extensive body of timber falling into the hands of Eastern speculators through process of fraudulent entry. There was even some local sentiment in favor of creating the reserve, and those at the bottom of the scheme merely took advantage of all the surrounding conditions in order to carry out the general plan of plunder.
By virtue of their sovereignty, each public land State is granted the 16th and 36th sections of every township within its borders for school purposes at the time of its admission into the union. These are consequently known as school lands. In cases where any portion of a school section becomes lost to the State ​either by reason of being; included in an Indian or Military reservation, returned as mineral in character, or taken under the homestead laws of the United States by a settler before approval of the survey by the United States Surveyor-General, the State is entitled to indemnity therefor, and can select other vacant Government lands in lieu thereof. By reason of the fact that the "base" thus created is available in exchange for other lands, it is clothed with an increased valuation, and at present such base lands are worth $8.50 an acre in Oregon, and are sold by the State Land Board at that figure.
In the case of the school sections within the limits of the proposed Blue Mountain Forest Reserve, however, the situation was different. These sections—or a large majority of them—had been surveyed by the Government and were "in place"—that is, subject to sale direct by the State, and at that time could not be used as the basis of selection for lands belonging to the United States. Inasmuch as a large percentage of the school sections within the limits of the proposed reserve were of comparatively small intrinsic value, being mostly "culls" and worthless tracts, they were still vacant, or unappropriated, and it was principally with reference to these lands that the indictment in the Blue ^Mountain Forest Reserve case had to do. The only way these tracts could be made available for use as base in making an indemnity selection would be through their purchase from the State by an applicant before the creation of the reserve, and after securing a deed from the State, to then transfer them to the United States and select other lands in lieu thereof. In this respect the school sections would be on the same footing, in the matter of exchange with the Government under the Forest Reserve lieu land Act of June 4, 1897, as any other patented tract, and the holders of title would have then been permitted to make an exchange with the Government for any of its vacant lands elsewhere. The Act of June 4. 1897 was repealed before the Blue Mountain Forest Reserve was finally established, hence the scheme of the conspirators in that regard was defeated, but it accounts for their desperate efforts to secure the creation of the reserve, as there were approximately 44,000 acres of school lands still unappropriated within the borders of the proposed reservation, and these lands could have been purchased from the State at that time for $1.25 an acre, by any qualified person making application for 320 acres. By reason of the system of exchange already described, wherein the tracts thus secured were worth from $5 to $7 an acre as lieu, it is easy to understand the motives that controlled those behind the plot to have the reserve created, as it was simply an attempt to legalize a method of trading silver dollars for twenty dollar gold pieces.
The evidence at the trial of the now famous Blue Mountain Forest Reserve case developed the fact that F. P. Mays owned a ranch in Tygh Valley, Wasco County, Oregon, and that on July 1, 1901, he had engineered a scheme—through Senator Mitchell—to have a small addition made to the Cascade Forest Reserve. It was shown also, that eventually Mays acquired title to all the vacant school lands in this addition, and the venture proved so successful and profitable that he conceived the plan of having a much larger reserve created. Proceeding upon this idea, a great many "dummy" applicants were procured from the "North End," a notorious district of Portland, who filed applications covering about 44.000 acres of the 16th and 36th sections that were known to fall within the limits of the proposed reserve.
The scheme looked so good to those concerned that eventually Willard X. Jones and H. A. Smith (since deceased) were taken into partnership. as it was believed by Mays that there was plenty to go around among his close friends, and it required considerable united effort to handle such a large project as that contemplated.
In December, 1901, Mays wrote to King at Vale, informing him of his intention to send Forest Superintendent Salmon B. Ormsby up there to investigate and report upon the feasibility of creating the reserve, and for King to meet him in a buggy and show him around. The humor of the situation can be properly understood when it is known that Ormsby had long been a tool of Mays, who was aware that he was "reachable" upon almost any kind of graft proposition. To send the Forest Superintendent upon such a mission is capable of but one interpretation—to pull the wool over the eyes of the public, and make it appear that the scheme of creating the reserve was in the nature of an official recommendation. It will be observed that Mr. Mays was a distinguished diplomat when measures of this character were involved, and that he possessed a wise conception of the proprieties in almost every crooked transaction undertaken by him.
Through the confessions of King during the trial of the Blue Mountain case, it was learned that the County Clerk had sublet his $4 a day contract to a local barkeeper named O. E. Pollock, who was allowed $2.50 a day and expenses for circulating the petitions, and that quite a number of the signatures thereto were very considerately written by this man, as the conspirators were crowded for time, and it was necessary to make as good a showing as possible. It was proved also that Senator Mitchell took a hand in the game by exercising his influence with the Interior Department and General Land Office to expedite the creation of the reserve, and for his part in the proceedings, the Senator was indicted with the other defendants. He died, however, before the case came to trial.
Presumably on the strength of the different petitions and representations, Binger Hermann, who was then Commissioner of the General Land Office, on March 19, 1902, instructed Forest Superintendent Ormsby to examine the land and report upon the advisability of creating the reserve. On April 14, 1902, Ormsby went to Mays' office, and was informed that Smith would accompany him on his tour of inspection, but instead a guide named William Henry Harrison went with the forest superintendent on his tour.
Ormsby returned from his trip May 24, 1902, and reported to Mays. W. N. Jones was also present, and after Ormsby had told what had been accomplished, Mays suggested to Jones that Ormsby should be given two school sections as a reward for his fidelity. At this Ormsby edged towards the door, and upon being followed by Mays, told the latter that he did not wish to talk before Jones, who was a stranger to him, but referred Mays to a Portland attorney named W. M. LaForce, who later went to Mays' office and secured an envelope containing deeds for two sections of school lands, which were to be held in escrow until the reserve was established.
While all these arrangements were being made, the association of get-rich-quick operators received a hard jolt in the shape of direct information that there was a leak somewhere, and that they were likely to experience serious competition in their scheme to corral all the school lands in the proposed reserve. It seems that Dan W. Tarpley was on the most friendly terms with Merritt Ormsby, the son of the Forest Superintendent, and as has been shown frequently heretofore, found a great deal of profit as well as pleasure, in this acquaintanceship. One day in a burst of confidence, young Ormsby told Tarpley that his ​father was engineering a big forest reserve scheme somewhere in Eastern Oregon, but was not sufficiently on the inside to know exactly what territory it was proposed to include in the boundaries of the new reserve. The mere suggestion of such a thing was enough for the quick-witted Tarpley, however, and he lost no time in apprising Horace G. McKinley of the situation. The pair went on a still hunt, with the result that they succeeded in unearthing the original map that had been prepared at the Surveyor-General's office, and for a consideration, secured a blue print thereof, thus placing them on an equal footing with those who had already gone to much trouble and expense in starting the ball rolling.
The manner in which Tarpley became aware of the proposed reserve is best told by his testimony while on the witness stand during the trial.
"I first obtained information concerning the proposed reserve in April, 1902, from Captain Ormsby's son, Merritt, in his father's office at Salem," testified Tarpley. "It was contained in a letter from the Commissioner of the General Land Office to the Forest Superintendent. After reading it, I took steps to secure the school sections in the limits of the new reserve as described in the letter. I first made a map of the country, and then went to the State Land Board and looked up the vacant sections, finding about 20,000 acres in that condition. I reported these facts to McKinley here in Portland, and he told me about a man named R. S. Hyde, from Wisconsin, who was stopping here, and who agreed to put up $4,000 in getting hold of the school sections. The next day McKinley, Hyde's son and myself went up to Salem and purchased 16,000 acres of this quantity, paying 25 cents an acre down, the majority of the certificates of sale being left in Hyde's hands as security for the money he had advanced.
"The first 16,000 acres McKinley, Hyde, Merritt Ormsby and myself were interested in, and the other 1,500 acres McKinley and myself owned between us. About May 1, 1902, I was told that Mays wanted to see me. When I called at his office, he told me that he understood that I had bought some lands in the Blue Mountain Forest Reserve. I replied that I had, and he said that they were some he expected to buy, and demanded that I should give him one-half of my certificates. I asked him why, and he replied that it was because of the expense of getting the reserve through. I answered that there were about 200,000 acres of school lands within the limits of the proposed reserve, and if each section was assessed upon the same basis as our lands, the cost of getting it through would have amounted to about v$500,000.
"Later I met W. M. La Force in the Chamber of Commerce building, and he informed me that Mays wanted to see me again. I told Mays that I would give him a sufficient number of the certificates of sale to amount to 50 cents an acre on all the land I owned, or about $8,500. This conversation must have been before the withdrawal. I made this offer without consulting McKinley."
Although getting a late start in the race. McKinley and Tarpley made up considerable ground by rounding up a sufficient number of "dummies" from the favorite North End precincts to embrace 17,500 acres in applications for school lands within the proposed reserve, which were filed by them at the State Land Office in Salem without much ceremony or delay. They would have taken more had the circumstances justified, but as it was, the}^ gobbled up all they could under a hurry order. Even as it was, several thousand dollars was required by McKinley and Tarpley to swing the deal, and in order to raise this amount, it became necessary for McKinley to keep the wires hot in all directions of the country as time was exceedingly valuable about then.
Evidently Mays in some way became cognizant of the fact that there was trouble brewing, as he hurried George Sorenson up to Salem with as much dispatch as possible, equipped with a sufficient quantity of "dummy" applications to cover 44,000 acres of school lands, or practically the entire available area. He arrived too late, however, and met McKinley and Tarpley coming down the steps of the State Land Office with their countenances wreathed in smiles that told their own ​story of a victorious achievement. Sorenson filed claims to all the remaining lands, however, and limped back to Portland, where he imparted the sad news to Mays, who as usual, blamed him for all his misfortunes.
It may be stated in this connection that while Sorenson attended to these details for Mays, and was indicted jointly with the latter and Jones for his connection with the scheme, it is believed that as a matter of fact, he did not profit to the extent of a dollar by the operation. his services in this regard being considerably upon the "Happy Hooligan" order. At all events, Sorenson has never been sentenced, and it is thought that the Government's knowledge of the situation may have had something to do with this exemption.
Mays was furious when he learned about the interference of McKinley and Tarpley, whom he regarded as interlopers, and immediately summoned Tarpley into his august presence. After assuring the young man that he had committed the most unpardonable offense of "butting in" on one of his choicest and most delicate morsels of plunder, he warned Tarpley that unless himself and McKinley yielded up one-half of all the land they had located, he would have their school sections "checkerboarded" when it came to a show-down—that is, omitted from the reserve pretty much after the fashion pursued by the Government in connection with the Santa Fe Railway Company's lands in the San Francisco Mountain Forest Reserve in Arizona, by having only the even numbered sections in the reserve embraced therein, and excluding the odd sections owned by the railroad corporation.
The bluff worked to a certain extent upon McKinley and Tarpley. as it appears they held a consultation upon the subject, and wound up by offering Mays 50 cents an acre upon all the lands they had fished from him, aggregating an amount equivalent to about $8,500.
"Fifty cents, indeed!" fairly stormed Mays. "Why, that wouldn't pay for the two fellows we have in Washington!' McKinley and Tarpley thereupon made a careful study of their map. and upon ascertaining that it would be impossible for Mays to checkerboard their holdings without impairing his own, advised him to seek a locality famed for the tropical character of its temperature.
As McKinley had to borrow all the money with which to purchase the lands from the State, he was obliged to sell them almost as soon as the certificates were issued by the Land Board. It proved to be a fortunate thing for him in this respect, as he received $2.50 an acre for lands that cost him $1.25. and had the satisfaction of knowing that himself and Tarpley were the only ones that profited to any great extent on the deal, as only a temporary withdrawal of the territory embraced in the proposed reserve was made at first, and pending this condition the Act of June 4, 1897, was repealed, so that when the reserve was finally established, the opportunity had passed for using the school sections as basis of .selection for other lands.
Those to whom McKinley sold purchased with their eyes open, as they were well aware that they were taking chances on the reserve being rejected, thus rendering their holdings of no value for lieu. Neither did the tracts possess any intrinsic value, as they were the "culls" of various townships in the proposed reserve, and so absolutely worthless, in fact, that they had never been applied for before. Had there been no repeal of the Act of June 4, however, they would have become available for making forest reserve lieu selections, and commanded a ready sale at from $5 to $7 an acre, as one kind of land would have been as good as any other under such conditions, the Act in question providing that the owner of any tract of patented land in a forest reserve had the option of exchanging his holdings for any unappropriated surveyed Government land on the outside.
Ormsby managed to get in out of the wet also by realizing a net profit of $1,000 on the two pieces that had been donated him by Mays and Jones out of their kindness of heart.
It was the understanding that Senator Mitchell was to receive 2,000 acres for his services in expediting the creation of the reserve, and it is thought that Binger Hermann's stand-in with Mitchell in this connection formed the basis of the indictment that was returned against the ex-Land Commissioner by the Federal Grand Jury. At all events, Hermann ^nd Williamson are soon to be tried under this indictment, Williamson's alleged activity in assisting in the promotion of the reserve being the chief reason for his connection with the criminal proceeding. The creation of the reserve was strongly opposed by the adjacent stockraisers, as well as the mining interests of the different counties affected by its boundaries, and they enlisted the services of Ex-Senator McBride with a view of defeating the measure. On July 27, 1902, Joseph Simon, then a United States Senator from Oregon, wrote a strong letter to Commissioner Hermann on behalf of a number of constituents, protesting against the inclusion in any reserve of certain lands in Malheur County.
​On October 25, 1902, C. A. Johns, a prominent citizen of Baker City, and at one time a candidate for Governor of the State, headed a delegation from Eastern Oregon for the purpose of calling upon Senator Mitchell and protesting against the reserve. Those accompanying Johns upon this occasion were John L. Rand, joint Senator from Raker, Malheur and Harney Counties; J. H. Robbins, a member of the legislature from Raker County, and connected with the First National Rank of Sumpter; N. C. Richards, an attorney of Sumpter; Emil Melzer, of the North Pole mine; Clark Tabor, Mr. Muller and Judge Fassett.
Johns telephoned to Senator Mitchell, making an appointment, and the delegation met him in a reception room of the Hotel Portland. They urged the necessity of having the order creating the reserve revoked, but were informed by the Senator that it would do no good, as the creation of forest reserves was a pet hobby of President Roosevelt. They were likewise told by Senator Mitchell that he had received a petition which he had presented to the General Land Office, asking for the creation of the reserve, and promised to send the delegation a copy of it, but never did.
The order for the withdrawal of the Blue Mountain Forest Reserve from settlement was made by Acting Secretary Ryan on July 23, 1902. Secretary Hitchcock never saw the letter of recommendation written by Commissioner Hermann July 2, 1902, which was introduced in evidence at the trial, and reads as follows:
   Sir: I am in receipt, by reference from the Department, for consideration and appropriate action, of a letter dated June 21, 1902, from the acting director of the Geological Survey, recommending the reservation of lands in Oregon for forest reserve purposes, the said letter being in part as follows:
   "2—I recommend that in the Blue Mountains, and the ridges stretching westward therefrom, a reserve be created, extending from southeastern Washington to a point north of Prineville, but broken on the line of the O. R. & N. Company's railroad. This reserve to be known as the Blue Mountain Forest Reserve. The timber consists throughout almost entirely of yellow pine, in an open forest, and its protection will be an aid to the mines in the neighborhood of Baker City, and to agricultural interests in the valley, whose water comes from these mountains."
   I now have the honor to transmit a report from Forest Superintendent S. B. Ormsby, recommending the reservation of certain lands in this region, a considerable portion of which have not been so recommended by the Geological Survey. I transmit also two letters from F. P. Mays, of Portland, Or., urging the early temporary withdrawal of the lands proposed to be included within the reserve.
   BINGER HERMANN.
The trial of the Blue Mountain case was notable in several essential particulars. It holds the record for being the longest of any land fraud case ever conducted in Oregon, lasting from August 20 to September 12, 1906, with night sessions. The jury brought in a sealed verdict at 1 :45 o'clock on the morning of September 13, finding all three defendants guilty as charged in the indictment. On May 3, 1907, Judge Wolverton sentenced Mays to pay a fine of $10,000 and serve four months in the Multnomah County jail at Portland, while Jones was given a fine of $2,000 and a term of ten months in the County jail. The United States Circuit Court of Appeals sustained the verdict of conviction, and defendants Mays and Jones were remanded to the custody of Marshal Reed, but have thus far ​evaded doing; time by reason of having secured a writ of error from Judge Wolverton, staying the execution of sentence. After this proceeding has been disposed of, both defendants will, in all probability, begin serving their sentences, as practically their last hope is gone.
The Government in this case was represented by Francis J. Heney, Special Assistant to the United States Attorney-General. of San Francisco, and William C. Bristol, United States Attorney for Oregon, while William D. Fenton, of Portland, and James D. Fenton. and W. Lair Hill, of Seattle, appeared for Mays; Judge Martin L. Pipes, of Portland, and S. B. Huston, of Hillsboro, for Jones, and Alex. Sweek, of Portland, for Sorenson.
It was unquestionably one of the most bitterly-contested cases yet tried in connection with the land frauds, as the three defendants were ably represented by some of the best legal talent of Oregon and Washington, Judge W. D. Fenton being the chief counsel for the Southern Pacific Company at Portland. He is a man of brilliant legal attainments, and considered one of the ablest lawyers of the Northwest. No man could have fought more earnestly or conscientiously for a client. W. Lair Hill also enjoys a splendid reputation as an advocate, and was in addition a personal friend and former professional associate of Mays at The Dalles. No stone was left unturned in the effort to save the accused, but their guilt was too firmly established by the overwhelming mass of evidence introduced by the prosecution to be overcome by the small amount of testimony offered in their behalf. It was during the course of Mr. Heney's closing argument that some of the most sensational features of the whole case developed. A great crowd had gathered to hear the distinguished prosecutor, and his appearance in the crowded courtroom was the signal for general applause from the spectators, which was checked instantly by the bailiff. Judge Hunt, who presided at the long trial, threatening to clear the courtroom if the offense was repeated.
At one stage of his impassioned address to the jury, Mr. Heney was interrupted by Judge Fenton, and the Government prosecutor retorted rather heatedly: "It doesn't make any difference, Mr. Fenton, before I get through I will skin you from the top of your head to the soles of your feet."
"If you do," responded Fenton with equal warmth, "I am willing to leave my hide in the jury box where I have six personal friends!"
This was considered an unfortunate remark by Judge Fenton, and was probably made under the excitement of the moment, as it was a reflection, in a way, upon the integrity of the jurors, and one that was evidently not relished by them to any great extent, if their scowling features was any criterion.
George Sorenson has never been sentenced, and it is questionable whether he ever will be, as the Government seems satisfied that he should not have been convicted under the evidence brought out against him in this case, his connection therewith, so far as the testimony went, being that of an agent for the other defendants, and it was not shown that he held any interest in the lands sought to be fraudulently acquired.