is no question but what, as you study the public land questions, you have got to study all of the natural resources of those areas and I think that is what my colleague is getting at rather than the question of State versus the Federal Government.

Mr. SAYLOR. Yes.

Thank you, Mr. Gray. It is always a pleasure to have you before the committee.

Mr. GRAY. Thank you.

Mr. BARING. The gentleman from Oregon?

Mr. DUNCAN. Mr. Gray, as I think these gentlemen have effectively pointed out, there are really two parts to your presentation this morning. One of them I think goes to the desirability and the composition of the Commission itself, the matter immediately before us, and the other to a couple of suggestions as to what this Commission should study, which in effect underscore your support for the study in the first place.

If I can ask you a couple of questions about each one of those sparately, as to the composition of the Commission itself, if we exclude any representatives of the executive department, relegating them perhaps to an advisory capacity and leave the user representatives in an advisory capacity, then what is the advantage that a commission would have over perhaps a similar study undertaken by this committee itself?

Mr. GRAY. Well, the first advantage I would see in the nature of a joint committe or a joint commission of the two Houses or of the two committees having jurisdiction over the same matter working intimately is that you would come out with a joint recommendation.

Mr. DUNCAN. Very good. Then going to the question of the subpena power which you discuss, and you suggest that the way the bill is written now any member of the Commission, any individual member, has this power. I notice that the bill itself limits the exercise of the subpena power to the Commission itself, or any committee thereof. Your feeling I guess is that they might have a one-man committee; is that right?

Mr. GRAY. That is one thing and too, Mr. Congressman, when you take the language of that particular section

Mr. DUNCAN. The subpena itself can be issued under the signature of any one member but it says in line 24, page 6, that it is the Commission, or on authorization of the Commission, "any committee." In other words, the subcommittee itself would not have the subpena power in the absence of an affirmative delegation thereof by the Commission. Mr. GRAY. That is quite correct, Mr. Congressman, but if you read

Mr. DUNCAN. Are you thinking about lines 6 and 7?

Mr. GRAY. Let's start at section 8(a) and read it through so we won't get out of context.

Mr. DUNCAN. You are down on lines 6 and 7 on page 7?

Mr. GRAY. That is what I am thinking of "Documents, records, memorandums, papers, and documents as the Commission or such subcommittee or member may deem advisable," so the member designates what he wants to subpena.

Mr. DUNCAN. But the subpena does not issue under the present language except on authority of the committee, if it has the power delegated to it or the Commission. Isn't that right?

Mr. GRAY. That is right.

But the single member has the right to designate.

Mr. DUNCAN. But that power is not exclusive.

It has to be reviewed by the committee and possibly by the Commission itself, depending on whether the Commission delegates that authority?

Mr. GRAY. Well, you have got language here, "Subpenas may be issued under the signature of the Chairman of the Commission, or such committee or any duly designated member," so you have authority to designate to a single man the right of subpena.

Mr. DUNCAN. I do not so read it but let's pass it for the moment. Do you think this Commission being advisory only needs the power of subpena in the first instance?

Mr. GRAY. Well, frankly, I do not, but on the other hand, if we are going to undertake a task such as this, I see where the subpena power, duly protected, could be of benefit and what I have suggested in my remarks is to take a look at the section governing the issuing of subpenas under the Civil Rights Commission Act where no committee or subcommittee of less than two can be created.

Mr. DUNCAN. With that restriction you think the advantages to the Commission outweigh the disadvantages to the individual who might be subpenaed?

Mr. GRAY. I do. I think Congress ought to have all of the information it can get and if there is any individual possessing information which Congress should have, it should be available.

Mr. DUNCAN. This committee has the subpena power. The question would be whether this Commission should have it or not.

Mr. GRAY. Yes.

Mr. DUNCAN. Then going to the questions of potential or possible recommendations of this Commission, I am interested, as the gentleman from Pennsylvania is, in the mention you make on page 5, the recommendations should provide for full and complete hearing before the agency can limit, determine or rescind any right or privilege given either by law or regulation.

Shouldn't they have a hearing for any proposed regulation?

Mr. GRAY. Now are we speaking of a hearing for the purpose of adopting a regulation?

Mr. DUNCAN. Yes.

Mr. GRAY. Definitely. I am speaking here only of where a regulation has been set up and a department has undertaken to limit the scope of a right acquired by that regulation.

Mr. DUNCAN. You and I and the committee all know that these regulations have the force and effect of law and it seems to me that before any of them are set up, regardless of whether they might be construed to limit, determine, rescind any right or privilege, there out to be a hearing on it.

Mr. GRAY. Yes.

Mr. DUNCAN. And notice.

Mr. GRAY. So far as the making of regulations is concerned.

Mr. DUNCAN. Going to the question of the appeal rights, the point you touch on is one that is applicable not just in connection with these land administering agencies but with almost any agency of Government. We need some appellate machinery that is at least quasi-independent of the agency that makes the laws and is prosecut

ing the violation and also sitting as judge in that particular procedure, do we not?

Mr. GRAY. We do. We need an independent administrative hearing department for the purpose of conducting hearings.

Mr. DUNCAN. Do you conceive, as you make this suggestion, of a sort of an administrative court to be set up to handle appeals from the decision of any agencies of Government?

Mr. GRAY. I would like to see that done.

Mr. DUNCAN. And you think that the courts themselves, the ultimate repository of the people's rights, are not adequate at the present time to handle that job without the intervention of an administrative court? Mr. GRAY. They have one rule which has been built upon court decision and augmented by legislation in some areas, where the court looks at the administrative body as a group of highly skilled individuals in a particular area and therefore the court will not entrench upon the decision as to facts and the court relegates itself to answering questions of law only.

Mr. DUNCAN. So long as there is evidence.

Mr. GRAY. As I have covered here, what I would like to see is that the court expressly be authorized and directed by legislation to review the record for the purpose of determining the adequacy and the sufficiency of the evidence to support an administrative determination. Mr. DUNCAN. You want a trial de novo.

Mr. SAYLOR. Will the gentleman yield?

Mr. DUNCAN. May I ask just one question? You want really a trial de novo in this administrative agency?

Mr. GRAY. No. I do not want a trial de novo. What I want is the courts to read the record for the purpose of determining if there is adequate evidence to support the findings, rather than to say, "These gentlemen have been selected, they are skilled, we take their facts." Mr. DUNCAN. I will now yield.

Mr. SAYLOR. In other words, what you want the court to do is to really look at the record and determine whether or not there were sufficient facts for the Commission to have found the facts as they have stated them?

Mr. GRAY. That is right.

Mr. SAYLOR. In other words, you do not want to find as some of the labor courts have found that the courts have said, "If there is any evidence to sustain a finding of the examiner that the court will not overrule it." You would like to have the court find, as a matter of fact, that the preponderance of the evidence is in favor of the facts as found by the Commission?

Mr. GRAY. As shown by the record made.

Mr. DUNCAN. Then you are having a trial de novo on the record. Mr. GRAY. No. My conception of a trial de novo is the opening up of the entire case, recalling the witnesses, and that is what I understand to be a trial de novo.

Mr. RIVERS. Would the gentleman yield?

Mr. DUNCAN. Yes.

Mr. RIVERS. There is a bill1 appending in the Senate now to create a land review board or board of public lands appeals, of land review adjudicators to make final determinations on appeals from depart

1 S. 758, 88th Cong.

mental orders instead of the Secretary of the Interior handling such appeals. Proponents point that the Secretary is part of the organization that makes the decision in the first place and the responsible people are his advisers in the second place and that it is a good idea to have such a board of qualified, capable adjudicators, review board, or whatever you want to call it, make the final determination as to the validity of the decisions made down below.

Mr. GRAY. I see.

Mr. RIVERS. Does what I have said appeal to you as being in point with what you had in mind?

Mr. GRAY. The general objective does. I would hate to say definitely that it contains procedures that I have in mind because I have not run across the particular bill to which you refer.

Mr. RIVERS. The bill was introduced by Senator Gruening, of Alaska, and hearings have been held by the Senate Interior and Insular Affairs Committee. You might be interested in looking into it.

Mr. GRAY. I will look into it.

Mr. RIVERS. I thank the gentleman from Oregon.

Mr. DUNCAN. That is all.

Mr. BARING. The gentleman from Virginia?
Mr. MARSH. No questions.

Mr. BARING. The gentleman from Arizona?

Mr. UDALL. I came in late, but I have read through your statement quickly and I think it is excellent. One problem I have run into in the mining laws and one improvement I would like to see made is one that is covered by a bill1 I introduced some time ago. I would be curious as to your attitude on this proposed change.

2

There is a court case which indicates that when a prospector goes on to lands where the surface rights of public lands have been patented, but the minerals have been reserved to the United States, he is liable if, in the process of making his discovery and location, he damages a corral or a fence or something used in connection with agriculture. But if he damages part of my residence, or my swimming pool, or my flower bed or patio or anything that is nonagriculture, the case indicated that this is not his responsibility and that he can do so without any liability at all.

It seems to me that this is a preposterous situation and that the law should provide that one going onto mineral lands, where there are surface improvements, if he damages those in connection with his location and discovery work, that he should pay just compensation. Are you familiar with this situation? Do you have any comments? Mr. GRAY. I am familiar with the situation, Mr. Congressman. The case that you referred to arose under the Stock Raising Homestead Act, which authorized a certain type of patent where the Government reserved the minerals.

Mr. UDALL. Yes.

Mr. GRAY. Mr. Congressman, the American Mining Congress has taken a position on it and the American Mining Congress thinks that if we, the miners, go upon any property where there are improvements, structures of any nature, we make a discovery and we take the ground over under location, there should be full compensation.

1 H.R. 254. 88 Cong.

Kinney Coastal Oil Co. et al., petitioners v. Michael Kieffer et al. (277 U.S. 487).

Mr. UDALL. You have warmed my heart and started off my day in great fashion. I have no further questions.

Thank you.

Mr. GRAY. I would hate to think the American Mining Congress would want to wreck somebody's home and not pay for it.

Mr. BARING. Thank you very much.

(The following communication was made a part of the record at this point :)

Hon. WAYNE ASPINALL,

CALIFORNIA MINING JOURNAL, Santa Cruz, Calif., August 26, 1963.

Chairman, Interior and Insular Affairs Committee,
House Office Building, Washington, D.C.

DEAR MR. ASPINALL: I am very much in favor of your establishing a Public Land Law Review Commission especially since it includes both the legislative branch of the Government and the executive branch of the Government.

I am including a weekly newspaper from Trinity County, Calif. I feel that you and your committee would be especially interested in the articles appearing on pages 16TA, 16TC, 16TD, 16TE, and 16TF.

Along with your idea of a Public Land Law Review Commission, I have often wondered if it would be possible to establish a permanent "watchdog" committee over the handling of our public lands. This "watchdog" committee should answer only to you and your committee. Whenever a citizen feels that he has

been mishandled by one of the Federal agencies, he could appeal to this "watchdog" committee for proper consideration. Should land use abuses follow a definite pattern, then this committee could recommend changes in existing laws to the full Interior and Insular Affairs Committee.

I do not know if such a thing is possible. However, we certainly need a committee of this type. Needless to say, it would work wonders in helping Congress reassume the authority that was once given them by our Constitution.

Sincerely yours,

NEWELL H. LEPPERT.

Mr. BARING. The next witness will be Bernard L. Orell, chairman of the committee on forest management of the National Lumber Manufacturers Association.

Mr. ASPINALL. Mr. Chairman, so that the other witnesses will understand, Mr. Orell has to leave this afternoon. In order to give him. the opportunity we are taking him out of the order of designation of the witnesses.

I also want the record to show that Mr. Orell was a member of the Outdoor Recreation Resources Review Commission.

Mr. BARING. We are pleased to have you with us, Mr. Orell. You may start your testimony.

STATEMENT OF BERNARD L. ORELL, CHAIRMAN, COMMITTEE ON FOREST MANAGEMENT OF THE NATIONAL LUMBER MANUFACTURERS ASSOCIATION

Mr. ORELL. Mr. Chairman and members of the subcommittee, my name is Bernard L. Orell, chairman of the Committee on Forest Management of the National Lumber Manufacturers Association. also appearing here today in behalf of the Forest Industries Councilthe forest policy coordinating organization of lumber, pulpwood, and paper industries. The 3 national associations comprising the FIC are the American Paper & Pulp Association, composed of 12 member associations, representing the entire papermaking industry; the American Pulpwood Association, representing private landowner proc