The Daily Missoulian. [volume] (Missoula, Mont.) 1904-1961, 1909-06-22
UNITED STATES JUDGE
IN DECISION
TROUBLE CAUSED BY RULING IN
REGARD TO GRAZING ON MA
T'oNAL FORESTS. "

Washington, June 21.--A somewhat
prevalent misunderstanding of the
significance of the action recently
taken by Judge Welborn of the Uni
ted States district court for the
southern district of California, north
cln division, in dismssng indictments
against three shcepmen, GAIA jous,
Grmaud and india, charged with hav-
ing unlawfully grazcd sheep without
a grazing permit upon a national for
est, has led Acting District Forester
Hatton of San Francisco to send to
all forest supervisors in California a
letter explaining the situation in the
following passages:
IN connection with this case my
attention has been called to Il news
paper clipping referring to Judge
Welborn's decision as follows: This
decision means, in effect, that from
this time on there will be no restric-
ton of the grazing which may be done
in the hills, matter of greater in
terest to those who have herds and
focks in the mountains
I "Another statement which appears
in the clipping is as follows: Graz
ing will be permitted ad libtum on
forest reserves until congress can
enact new laws to cover the
situation
"rhe language above quoted indi-
Gates an entirely erroneous conception
of the effect of Judge Wellborn's
decision. Judge Wellborn did not
question the right of the secretary
of agriculture to control grazing
/ upon the national forests. nor his right
to prohibit any unpermitted grazing
I After setting forth that the authority
of the secretary of agriculture to
prohibit grazing without a permit had
been expressly upheld by the United
States circuit court of appears in the
Shannon and Dastervignes cases, MIR.
Hatton's letter continues:
"rhe authority of those decisions
was expressly recognized by Judge
Wellborn. Those cases We're. however,
civil cases in which the United States
was granted injunctions restraining
the defendants from grazing trespass
| upon the forest reservations, while the
cases of Cazajous, Grimaud and 1nda'
were criminal prosecutions.
Judge Wellborn held that While
the secretary of agriculture has fun
authority under existing laws OF con-
gress to promulgate regulations pro-
hibiting grazing upon national forests
except under permit. and While the
forests can be protected against an
violation OF such regulations, by thc
bringing of civi actions and suits Tor
Injunction. still a violation of the
regulations can not be held to pc a
crime. In other words, the decision
of Judge Welborn did not question
the right of the secretary OF agrl-
culture to enforce by civil process
proper observance of the grazing
regulations. but held merely that VIOLA
tions of the regulations could not be
made the basis of criminal action
"Under the Criminal Appeals Act OF
March Q. 1907 GA Stat. 1246), the at
tornev general has instructed the Uni
ted States attorney at Los Angeles to
sue out writs of error at once and
have Judge Wellborn's decision re-
viewed by the supreme court OF 'he
limited states, This is the first OPP
rortunity the. government has had TO
obtain a ruling upon this question by
the supreme court. The appeal VIII
be prosecuted to as early decision
, as possible
Judge Wellborn's ruling, as Mr.. HAT
ton points out, was directly contrary
, to decisions of tie United States aus
trict courts of Idaho. Northern Call
fornia and South Dakota, and the st-
prcme court Of Arizona and also 10
| an opinion of United States Attorney
General Griggs. In explanation Oh the
course now to 'be pursued by the 1or-
est service Mr.. Hatton's letter says
"As heretofore, the grazing reguia-
tions will continue to be vigorously
enforced upon every forest. Any Will
ful violation will be at once reported
hv fine forest officers and prompt
action will be taken. Past experience
has shown that only upon very rare
occasions indeed is court action neces'
sary. The acknowledged justice AM
= propriety of the grazing regulations
have generally appealed to the sehss
| of fairness of forest users. with lh'
, result that willing compliance with
: and hearty cooperation in the e'l'
forcement of, the regulations, nave
! been the rule. and cases OF Wlliiu
+, violations have been of rare occur
renee. Where court action is fouhe
. necessary it has always been ane
will continue to be the rule OF th'
forest service to avoid criminal prose
cutton if possible, and to rely upol
y remedy by civil action"
!, After remarking that since the Uni
, | ted states district court for the north
: ern district of California has held con
trary to Judge Welborn's decision
there is no reason why crimlna
prosecutions may not, in proper eases
he brought in that court, the decision
of which has equal authority Wit