area could well be logged from the Clackamas and Collawash road system without adverse haul.

Mr. Case's figures on volume and possible sustained yield check reasonably well with estimates we made by adjustment of our present resource survey figures. However, the annual allowable cut would be somewhat lower because all of the timber is not reasonably accessible from the west and because of contemplated reservations. It does not appear that the proposal could be modified in any way to include sufficient area and timber for primary support of Molalla's milling capacity.

Because the proposal does not meet essential qualifications for a Federal unit in so many respects, we can see no purpose served in holding a public hearing. Rather, we feel your committee should explore other means for providing assurance of a supply of timber for your mills and thus stability for your community. We sincerely believe your community's welfare can be better served in other ways and will be happy to discuss and explore them with you. Please feel free for you or members of your committee to call on me or Supervisor Olson at any time.

Very truly yours,

J. HERBERT STONE,

Regional Forester.

Mr. LUND. I might explain that since that letter was written there have been a number of conferences with the representatives of the city of Molalla, including two, I believe, semipublic hearings down at Salem called by Representative Groener of the State legislature. There has been a meeting between representatives of the Forest Service and the Bureau of Land Management and the Weyerhauser Timber Co. and with IFA, and others, to discuss it.

The Molalla testimony we had, I believe it was stated that Mr. Mason of our Chief's office had been out here for a meeting with them, and that is true.

So, there have been numerous discussions. Throughout all of them we have tried to explain the law and the policy to them and to explain why in our opinion we felt that they were not qualified for a Federal unit, and we have discussed throughout, however, that we were willing and glad to explore it further with them, and we have suggested that if they could select a different unit for a proposal, a different area, and wanted to make a definite proposal, we certainly would give it full and careful consideration.

Thus far they have made no other definite proposal.

Mr. COBURN. So as to that other area business, do you mean to say that the suggestion would be to move the mills from Molalla to some other area?

Mr. LUND. No, to have a complete understanding you would need to have quite a little knowledge of the geography, perhaps, of the

area.

Now, the national forest timber that is directly tributary to Molalla is not very great. It is a little crescent-shaped area at the very headwaters of the Molalla River. That is a part of our Clackamas-Sandy working circle. The bulk of the timber in the Clackamas-Sandy working circle is on the Clackamas side of the ridge.

In their original proposal, they included this crescent-shaped area at the very headwaters of the Molalla that dropped to the Clackamas side and took in a substantial volume of timber in the Clackamas drainage. They located their boundary on the contour line.

Now, obviously that makes a very irregular area. Part of the timber then would have to go to Molalla and part of it would be allowed to go down the Clackamas, and, as we pointed out in that letter, all of

it logically should be down the Clackamas drainage because it is a downhill haul.

Another thing we pointed out to them is that they are actually in just as good a competitive position so far as transportation is concerned to bid on any timber in the Clackamas drainage because the haul from the Clackamas to Molalla is no greater than from the Clackamas to Portland, for example.

Mr. COBURN. Is there a problem of road access involved in this? Can you answer that "Yes" or "No"? You said something to the effect that they could not get in from the west side. You would have to build a road. Does that mean that somebody has a road there and they cannot use it or does that mean there is no road there?

Mr. LUND. Well, the Clackamas River road would tap some of this timber.

Mr. COBURN. Is that available to some of the mills that he is speaking of?

Mr. LUND. It is or is not. It is available under the BLM road agreement.

Mr. COBURN. It is between what parties, the BLM and what parties? Mr. LUND. It is the road that Mr. Stamm was discussing, between Weyerhaeuser and Crown-Zellerbach, and as Mr. Weyerhaeuser pointed out in his testimony, they have recently advised the BLM in writing that they would make that road-use agreement available to the Forest Service and, of course, he has told us that a number of times verbally.

Mr. COBURN. What about those segments of the road controlled by Crown-Zellerbach?

Mr. LUND. That would be subject to negotiation with CrownZellerbach.

Mr. COBURN. That would still be subject to negotiation with CrownZellerbach who are not covered, as I understand, by any agreement? Mr. LUND. Well, I am not too well acquainted with all the ramifications of those agreements. We have not had occasion to examine them.

Mr. COBURN. Let us say that it is unfair to ask you about a BLM problem. I agree with you. But the point is that you have access blocked in one way or the other on the Molalla Road; is that correct? At least it has not been open to date.

Mr. LUND. Well, there is a problem there, let us say.

Mr. COBURN. There is a problem there, the problem involves access over the Molalla Road; is that correct?

Mr. LUND. That is right.

Mr. COBURN. Now, Mr. Stone, you say that you managed some 309 billion board-feet of commercial timber in some 17 million acres and you have kindly furnished the committee with a detailed list of your access problems. How much of this 309 billion board-feet of commercial timber is blocked at the moment?

Mr. STONE. I could not answer that. Can you, Mr. Lund?

Mr. COBURN. Approximately, however.

Mr. STONE. Could you even give an approximation?

Mr. LUND. Well, it depends on your definition of blocks. I do not feel that any of it is blocked permanently. There is considerable volume where we still need to work out access problems.

Mr. COBURN. Let us be specific. Let us take the Siskiyou.

According to your own figures, the name of the area, it is the Euchre Creek area located in the Rogue River working circle 4,000 acres of national forest land, 100 million board-feet of timber, you say:

The company has been stalling in granting the needed right-of-way.

What I am getting at is on the basis of the figures you have furnished us, there are millions and millions of board-feet of timber tied up. I should think you would be able to tell the coommittee approximately how much of that timber is tied up. You have detailed it but not given us a total.

Mr. LUND. That term "stalling" is probably a bad choice of word by the man who wrote it.

I would say they have been reluctant to grant a right-of-way but, on the other hand, let me say that we have not made a specific request. for a right-of-way in the Euchre Creek area.

Mr. COBURN. Let me quote further:

Exhaustive negotiations will probably be necessary to secure an unencumbered easement.

Mr. LUND. Well, I think that is true. It has been our experience that we have had to enter into some pretty long, exhaustive negotiations in order to solve these problems and they are an extremely timeconsuming job.

Mr. COBURN. Mr. Stone, do you have counsel with you?

Mr. STONE. Mr. Carlson out of our counsel's office is here.

Mr. COBURN. I think this is a legal question. According to Mr. Hagenstein's statement of November the 21st, in which he makes a comparison between the way Forest Service and BLM handles the right-of-way problems, he quotes from a statement by Mr. Edward P. Cliff, Assistant Chief of the Forest Service, who made a speech to the Pacific Logging Conference in Seattle in November of 1953, and in the course of his remarks to the Congress, Mr. Cliff said this:

The Forest Service does not require such a private timber owner to grant rights-of-way across his land in return for the privilege of crossing national forest lands. This policy is based on a provision in the act of June 4, 1897, 16 United States Code 478, which assures the right of ingress and egress to actual settlers. We believe it was the intent of Congress that "actual settlers" should be construed broadly to include anyone who owns property within national forests.

Then he goes on to say that while this has been a theoretical proposition now they have written into the regulation an interpretation of this act which stands as a statutory provision, and I would like to know how your counsel, or whoever did this, arrived at that conclusion.

Mr. STONE. I have here a copy of a letter from Mr. Farrington to the General Counsel for the Department of Agriculture, to Mr. Arthur Perlman of your committee, which gives the legal standpoint. Mr. COBURN. Do you want to offer it for the record?

Mr. STONE. I would be glad to offer that for the record in explanation.

Mr. COBURN. Does that cite any court decisions, any cases? Representative CHUDOFF. Yes; it does. I have not read it but I see at the bottom of the page, Humphrey's Executor versus the United States, Holy Trinity Church versus United States, et cetera.

Mr. LANIGAN. Since I read the letter, can I say that those are only cited for certain general propositions. They are not cited on this law. They are cited on some rule of statutory interpretation that they claim is applicable.

(See also, pp. 2094-2098.)

Mr. COBURN. Perhaps it could be clarified more fully if counsel would explain. I think it is an important point.

STATEMENT OF C. C. CARLSON, ATTORNEY IN CHARGE, GENERAL COUNSEL'S OFFICE, UNITED STATES FOREST SERVICE, PORTLAND, OREG.

Mr. CARLSON. Mr. Chairman, my name is C. C. Carlson.

Representative CHUDOFF. I presume you are one of the local counsel for the Forest Service. This letter is signed by Robert L. Farrington, General Counsel for the United States Department of Agriculture. How you can say what he meant when he wrote this letter, I do not know, but if you are willing to try, proceed.

Mr. CARLSON. I am willing to stand on Mr. Farrington's explanation, Mr. Chairman.

Representative CHUDOFF. This is a letter like a lot of Government letters. Mr. Farrington signs everything regardless of whether he writes them or not, and certain legal opinions and legal documents. are interpreted by other counsel for the Department and sent out under Mr. Farrington's name.

Mr. CARLSON. That, I understand, was sent out from the Washington, D. C., office and not from the local office here. I am in charge of the local office for this area.

I think it was in response to a letter which Mr. Perlman or some of the other committee members sent to Mr. Farrington. Who in his office prepared it, I am not sure. I think the letter itself is quite explanatory. It goes into the congressional history and some of the discussions with regard to the meaning of the act of 1897.

Representative CHUDOFF. Mr. Farrington is trying to get the intent of Congress from the Congressional Record and committee reports concerning this problem?

Mr. CARLSON. With regard to the definition of "settlers," yes. Mr. COBURN. In the interest of saving time, the staff can, of course, analyze this and whatever conclusion the committee comes to will be reflected in the report.

Representative CHUDOFF. I think it ought to be in the record.
Without objection, so ordered.

(The document referred to is as follows:)

Mr. ARTHUR PERLMAN,

DEPARTMENT OF AGRICULTURE,
OFFICE OF THE GENERAL COUNSEL,
Washington, D. C.

Staff Director, Public Works and Resources Subcommittee,
Committee on Government Operations,

House Office Building, Washington, D. C.

DEAR MR. PERLMAN: Reference is made to your letter of May 20, 1955, concerning the authority of this Department under the act of June 4, 1897 (30 Stat. 36, 16 U. S. C. 478), relative to reciprocal road rights where timber is hauled over national forest and privately owned lands.

The Secretary of Agriculture has no authority to grant easements for road rights-of-way over national-forest lands reserved from the public domain. The

Forest Service, therefore, cannot enter into agreements with private landowners under which reciprocal easements will be granted for timber-hauling purposes. It does, however, have the authority to permit the construction or use of roadways across such lands. This is done through the issuance of a revocable permit or in connection with and as part of an authorized use of national-forest land, such as use in connection with a timber-sale contract. In addition, the Secretary through the Forest Service recognizes a statutory right of persons owning land within the national forests to have a roadway across such lands for ingress and egress purposes. The basis of such recognition is the interpretation of that part of the 1897 act to which you referred, namely, section 478 of title 16, United States Code. The enjoyment of such a right is subject as to all persons to reasonable rules and regulations issued by the Secretary, as provided by the statute. It has been our informal view that this right is not an exclusive one, that is, one which permits the person enjoying the ingress and egress road to prohibit the reasonable use of such road by the others. At the same time, the right may not be defeated through regulations unreasonably limiting it or making it dependent upon the landowner giving a consideration therefor, such as, for instance, use of a connecting roadway over his own land. Regulations reasonably governing road locations and standards of construction would be considered proper limitations on the right.

As you indicated, this office has informally interpreted the act of June 4, 1897, as recognizing a right of ingress and egress across national-forest lands reserved from the public domain in all persons owning land within the exterior borders thereof. In so doing, consideration was given to the legislative history of the act and the intent of Congress, keeping in mind such decisions as Humphrey's Executor v. United States (295 U. S. 602, 625 (1935)), Holy Trinity Church v. United States (143 U. S. 457 (1892)), and United States v. American Trucking Association (310 U. S. 534, 543 (1940)).

Of particular significance in the legislative history are statements by Senator Berry and Senator Allison (a conferee who took a leading part in sponsoring the legislation). Senator Berry said:

"The Senator from California [Mr. White] contends that this language would be construed to prohibit anyone who owns land, unless he was an actual settler within the limits, from going to and from that land. I do not think it possible that any court or any department would ever give such a construction to the section" (30 Congressional Record 1279).

Senator Allison stated: "I am quite sure that persons owning lands within a reservation are not to be deprived of the right to enter upon those lands" (30 Congressional Record 1278).

In addition to considering title 16, United States Code, section 478, consideration also was given to the other portions of the 1897 act to which you referred. Briefly, the second paragraph of 30 Statute 36 deals with two groups of persons, namely, those who as homesteaders on the public domain had not completed the full period of residence necessary to entitle them to a patent for the land and, therefore, had only unperfected claims and those who having fulfilled the residence and other requirements had perfected their claims and become owners. The fact that homesteaders who had not completed homesteading requirements were being given the same opportunity as owners but with different requirements necessitated specific reference to both groups in that part of the act. Such reasons do not extend to the third paragraph (found in 16 U. S. C. 479).

As we have indicated above, this office has informally expressed the view that the right of ingress and egress which is held by owners of lands within the national forests is recognized by statute and is not a permissive right dependent upon the discretion of the Secretary of Agriculture. With respect to O. and C. lands, the statute is different and greater authority is reposed in the Secretary of the Interior. The act of January 21, 1895 (43 U. S. C. 956), which applies to those lands authorizes the Secretary of the Interior under regulations to be fixed by him to "permit" the use of rights-of-way. The regulations (43 C. F. R. 115.154-115.179) provide with respect to the O. and C. lands that in granting rights-of-way across such lands to private operators the operators may be required to grant to the United States certain reciprocal rights.

Sincerely yours,

ROBERT L. FARRINGTON,
General Counsel.

76321-56-pt. 2-13