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"Creative Act" - Forest Reserves

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In 1891, the "Creative Act," "Forest Reserve Act" or General Land Law Revision Act (26 Stat. 1103) was passed. The original Act contained no provision whatsoever for forest reserves. It repealed several Acts, including the Timber Culture Act of 1873 and all pre-emption laws. [The Timber Culture Act granted a homesteader a patent to 160 acres of land in the Great Plains if he agreed to plant 1/4 of land in trees. This was later changed to eliminate tree planting provision.]

Section 24, the one that authorized the President to set aside forest reserves, was added as a last minute rider to "An act to repeal timber culture laws, and for other purposes" by a House-Senate conference committee. The rider was never referred back to its originating committees, (House and Senate Public Lands Committees,) which is, technically, an illegal procedure.

Sec. 24: "That the President of the United States may, from time to time, set apart and reserve, in any State or Territory having public land bearing forests, in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations; and the President shall, by public proclamation, declare the establishment of such reservations and the limits thereof."

The authorizing clause gave the President the power to proclaim, but lacked any provision for appropriating funds or for the management of any forest reserves. In practice, this meant the reserves were absolutely closed to use.

In 1894, the Department of Agriculture prohibited the "driving, feeding, grazing, pasturing or herding of cattle, sheep and livestock" as its first administrative policy on the forest reserves. (Frederick Coville, "Forest Growth and Sheep Grazing in the Cascade Mountains of Oregon, U.S. Department of Agriculture, Division of Forestry Bulletin no. 15, p.10.)

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The "legal effect" of reservation was later determined to be a withdrawal of the land from  the "public domain," rendering use a mere privilege in contravention of any claim to public common grazing right or established local "possessory rights."

Later challenges in 1911 questioned the Forest Service's right to impose grazing permits and fees on the use of range in the public domain on the basis of the "implied license" affirmed in Buford v. Houtz . The Court ruled in Light v. U.S. (220 U.S. 523, 55 L. Ed. 570. 32 Sup. Ct. Rep. 485) and U.S. v. Grimaud (220 U.S. 506, 31 S. Ct. 480, 55 L.Ed. 563) that the Forest Reserves had been withdrawn from the public domain and that the "implied license" of Buford v. Houtz had been "curtailed and qualified" by Congress, to the extent that the privilege of grazing should not be exercised in contravention of the rules and regulations of the permit system. (Grimaud was a transient shepherd, utilizing the land as open "grazing commons" in public domain. At the time of the Grimaud case there were extensive valid permits to graze in the Sierra Forest Reserve with which his use would have conflicted. Under Forest Service "Use Book" rules for granting grazing permits, transient herders, such as Grimaud, who could make no claim to local property ownership, were given Class C, or last priority is granting of permits.)

Before expiration of his term, President Benjamin Harrison had reserved almost 13.5 million acres of Western Land.


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