The Illegal Origin of the National Forests
Fourth of a Series
by Steve Miller Electric Nevada
copyright © 1996, Electric Nevada
Back in 1890, because of a new U.S. Supreme Court ruling, it seemed Nevada was about to attain equal status with the other, older, states of the nation.
In those other states the public domain lands originally held in trust by the federal government had become the property of homesteaders and settlers and so, in the natural course of events, had moved onto the state tax rolls.
Arid Nevada, though, had presented Congress with a unique situation. And because Congress had never faced up to it, settlement of the public domain lands had lagged in the state.
The fact was, the only way settlers could make a living on most of the land within Nevada borders was by running cattle on huge plots of the arid rangeland -- plots much larger than the 160-acre parcels which had been sufficient for the settlement of the East and the Midwest.
So the need for a federal range settlement law allowing for stockmen was widely recognized. Presidents Ulysses S. Grant and Rutherford B. Hayes had proposed such land use legislation, as had John Wesley Powell, director of the U.S. Geological Survey from 1881 to 1894.
For example, Powell, in his landmark study Report on the Lands of the Arid Region of the United States had argued that Congress should recognize the circumstances of the desert West and allow much larger homesteads --- ranch units four miles square, or 2,560 acres.
But Congress, during the entire quarter of a century following Nevada statehood, had never complied -- in large part because of active lobbying by the nation's newly powerful Northeast capitalists.
Like the new class of bureaucrats in the Department of the Interior, the new financiers of the Northeast had a vested interest in retarding the privatization of the West. Just as liberal homesteading of the West would mean a quick end to the privileges and sinecures of Land Office bureaucrats (detailed here last week), it would also take the immense natural resource base that was the West out of the grasp of the politically dominant Northeast capitalists. So the Department of Interior and America's money-center financiers worked hand in glove through Congress for a quarter-century to stave off privatization of the West.
They were aided, notes historian Richard Bensel, by the full-scale depression of the 1880s, during which harsh economic hardships suffered by the populace east of the Mississippi were being blamed on 'cheap production' from the West.
"The public believed it," writes Hage, "and the Eastern capitalists plundered the West with little political interference from a Congress and courts dominated by Eastern solons and judges."
But suddenly in 1890, a wild card endangering Eastern control was thrown on the table. The U.S. Supreme Court -- in the landmark precedent case of Buford v. Houtz -- opened another route through which ranchers could pursue direct title to the western rangelands.
Not only did the decision recognize an implied license for the settler-ranchers to use the public domain lands for grazing purposes, but it also cited long-standing practice plus earlier Congressional intent to explicitly envision ranchers perfecting their title to the land while grazing their stock upon the range.
"Although the record is silent," says Hage, "Buford v. Houtz must have sent a wave of panic through the anti-western- growth movement." He adds that, following the federal water law of 1866, which had endorsed the West's prior appropriation water rights doctrine, this new high court action suggested the ranchers' full title in the range was only a couple of steps away.
Now the Northeast began a vociferous attack -- expressed in legislative, litigative, and public relations efforts -- against preemptive range rights and prior appropriation water rights -- the 'first in time, first in right' principle that had settled all the new states after the original thirteen. Now that the same process was in use out West, it suddenly had become sinister.
There was immense hypocrisy and greed behind the Eastern finger-wagging, many historians agree.
"The limitless antagonism of the East was a truth," wrote Richard Lamm and Michael McCarthy in The Angry West. "The exploitative impulse was fact, not fancy, and paternalism, contempt, arrogance and distrust were as commonplace as snow on a Utah mountainside.
"The attitude was as old as the West and East themselves. The West was suspect. It had always been suspect. The East romanticized western life and history and lionized its heroes, but only discreetly, from a distance. All the while it saw it as a remote and frightening world of political radicals, economic misfits, and other fools cast out from civilization."
"All [the West] knew," said Lamm and McCarthy, "all it experienced, was a scathing contempt hurled at it from the Eastern shore, the unstinting conviction that westerners were plunderers and thieves and that if the public domain was to be saved, the East would have to do it."
The attack on preemptive range rights and prior appropriation water rights in the West -- an attack, Hage notes, which continues still today, a century later --- took the form in the late 1880s of a largely successful effort by Northeastern industrial and financial interests to redirect what had been, until then, a troublesome forest preservation movement.
Those same Northern interests had reaped enormous profits from clearcutting timber during and after the Civil War --- first for charcoal for gunpowder, and later to rebuild northeastern cities. Over the past decade they had increasingly been beset by complaints about the wholesale removal of, first, the white pine and hardwood forests of the Atlantic, and then the destruction of all forest resources east of the Mississippi.
Now those same eastern capitalists began pouring money into the fledgling nature preservation branch of the conservation movement, notes Hage, following Bensel. "Railroad magnates such as Edward H. Harriman doled out largesse --- including extensive expense-paid expeditions --- to nature writers such as John Burroughs and John Muir, the latter of whom unwittingly helped Harriman obtain a monopoly of the railroad route to Yosemite National Park.
"Conservation-minded publisher Robert Underwood Johnson of Century magazine helped set the public agenda for nature preservation" as he sought the support of powerful eastern capitalists like George Vanderbilt, Clarence King, Alexander Agassiz and Theodore Roosevelt, all of whom owned large western cattle and mining operations, and several of which had supported
Johnson appears to have been instrumental in a major piece of illegal "luck" that the anti-Western forces enjoyed a year after the Supreme Court decision. It would eventually mean the extinguishing of Western ranchers' hope for full title in the range.
What was illegal --- but successful -- was an action by a House-Senate conference committee, on which sat one William Steele Holman, and one Preston B. Plumb.
Holman, an Illinois Democrat, was a family friend of Johnson's, and a man who Johnson frequently lobbied, successfully, upon conservation issues. Plumb, a Kansas Republican, had also been successfully lobbied by Johnson.
As Harold K. Steen details in his 1976 book, The U.S. Forest Service: A History, what is today called the "Forest Reserve Act of 1891," when originally passed by House and Senate, contained nothing at all about forest reserves. The fatal Section 24, giving Presidents the power to unilaterally withdraw from the public domain forest reserves where settlers could not enter, was added by conferees as a last minute rider to a bill to repeal the Timber Culture Act of 1873.
Because that resulting provision was not referred back to the originating Public Lands Committees of either House or Senate, it was illegal under laws governing the operation of the Congress. In the view of many Constitutional scholars, it was also illegal because the powers given the Presidency were not - under the Constitution -- Congress's to give.
Holman, ranking Democrat on the House Public Lands Committee at the time of the conference committee, had been the committee's chairman three years before when Democrats had controlled the House. That was when he had introduced a bill, never passed, from which the infamous Section 24 was copied in 1891.
"The bill went directly to a floor vote," writes Hage, "and nearly every commentator says that Congress passed this most important law without being aware of its content."
Indeed, shortly before the Senate vote, Preston Plumb, chairman of that body's Public Lands committee, explicitly reassured one senator that it would not do what it did!
Florida Senator Wilkinson Call had interrupted the reading of the conference report, calling for the conference version of the bill to "be printed so that we might all understand it before acting upon it."
Plumb falsely assured Call that "there is nothing in the report on any subject whatever that has not already undergone the scrutiny of this body, and has been passed by this body." In actuality, Section 24 had never before been seen by the U.S. Senate.
When Call, following the reading, asserted "I shall not .. consent if I know it to [contain] any proposition which prevents a single acre of the public domain from being set apart and reserved for homes for the people of the United States who shall live upon and cultivate them," Plumb again falsely assured him that was not the case.
"No bill has passed this body or any other legislative body that more thoroughly consecrates the public domain to actual settlers and home-owners than does the bill in the report just read," said Plumb.
However, after President Benjamin Harrison signed the bill, he immediately used it to permanently exclude "actual settlers and home-owners" from land near Yellowstone Park.
By just five years later, Harrison and the next president, Grover Cleveland, had used the provision to create reserves covering some 20 millions of acres- much of it valuable grazing land upon which ranchers had already established prior rights.
Cleveland, especially, used the powers of Section 24 to indulge blatant sectionalist and political hostility against the West.
"In the early 1890s Cleveland's gold policies had been savagely opposed by the pro-silver West," write Lamm and McCarthy, "and western antagonism, in part, cost him renomination in 1896. To a great extent the proclamations were an act of political revenge --- 'as outrageous an act of arbitrary power,' said a Wyoming congressman, 'as a czar or sultan ever conceived.'"
Cleveland's 'Midnight Proclamations' were made only ten days before he left office, and had been kept secret from Westerners.
"Ten years later Roosevelt repeated the same process," write McCarthy and Lamm.
"On a single shattering day in 1907 he withdrew 17 million acres of timberland from entry in 21 new national forests in six western states. The action, which sent shock waves across the West, preceded by a matter of hours the enactment of a measure prohibiting creation of future forest reserves without the consent of Congress."
"The effect was to tie up vast areas of the public domain so that no one could settle them, cut firewood or construction timber on them, hunt game on them, mine minerals, or even build transportation roads through them," says Hage.
In 1897, six years after their illegal birth, Congress finally passed measures to administer and fund the federal forest reserves. In 1905, they were transferred to a new bureaucracy in the U.S. Department of Agriculture, the newly created Forest Service. In 1907, the reserves were renamed 'national forests.'
"The Forest Service would in many ways become the in-house federal agency of the northeastern money trusts in their fight against the ranching community of the West," wrote Hage.
"The Forest Service would act to inhibit economic development of the West and to insure continued Eastern influence over the West's resource base."
Next week: Nine Decades of Abuse by the Forest Service in Nevada
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