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gests, we wanted to propose the establishment of some wilderness areas in Alaska under this legislation if it were enacted, it would require a special act of Congress, as it would for any other new areas anywhere else. It could be done, but I want to make plain that, as far as the national forests are concerned, there are no areas now covered by this proposed legislation in Alaska.
The CHAIRMAN. We could do the same thing with Alaskan scenic areas as we would do under this bill in regard to primitive areas moving into wilderness. Or, if we wanted to put them in, we could adopt a bill and send it to the President, and he can sign it and they would become wilderness areas. You would have to have special legislation for it. I think I would like to say to Senator Gruening when he wanted to know why these things have taken so long, that, if he had been in the hearing on the Gila wilderness that some people in this room attended, when the cattlemen had their point of view and the mining people had their point of view and everybody was there to tell you why you shouldn't do it, he would understand why it takes many, many years to get a wilderness area finally established
It is a slow process because there are just so many interests that want to be heard that have good reasons why it shouldn't be done. It becomes slow. I am very happy to have the assurance of the head of the Forest Service that the proposal made by Senator Gruening can be studied and, if there are opportunities to include it, we might, before final passage of the bill, add some language that would permit inclusion of Êhese areas of Alaska if desired.
Senator GRUENING. I would like just to have the committee come to Alaska and look over the scenic areas and others before a final decision has been arrived at.
The CHAIRMAN. That is the most statesmanlike proposal that has been made all day. Some of us went to Alaska for the purpose of taking a look at the possibilities of statehood and the reception we got up there was so enjoyable that people who were opposed to statehood became its most avid enthusiasts.
Maybe this is the way to get the job done that Senator Gruening wants done.
Senator Hickey, do you have any questions?
Senator HICKEY. Thank you, Mr. Chairman. I just have three short ones.
What is the Forest Service definition of wilderness? If you will just tell
me where I can find it it will satisfy me. Mr. CRAFTS. You can find it in regulations U-1 of the Secretary of Agriculture. It is also defined beginning on page 2 of this bill and with that definition we concur, as expressed in this bill.
Senator HICKEY. Am I to understand that you will adopt the definition set forth in this bill under (b).? Or that you already have such a definition?
Mr. CRAFTS. We will follow the definition that is in section 2(b) which, for all practical purposes, is the same as the definition we use now.
Senator HICKEY. Where can we find the definition that for all practical purposes is similar to this?
Mr. CRAFTS. I can submit it to you, or you can find it in the Secretary's regulations and the Forest Service manual.
Senator HICKEY. Would you submit it to me, please?
The CHAIRMAN. Submit it for the record, because other people may want the same thing as Senator Hickey does.
(The document requested has been submitted and it appears earlier in the record.)
Senator HICKEY. You say for all practical purposes it does compare identically to the definition contained in this S. 174?
Mr. CRAFTS. That is correct.
Senator HICKEY. The difference between wilderness and primitive, I take from your prior testimony, will no longer be of any consequence because of the fact that, if this bíll is enacted, primitive will be eliminated and all will become wilderness, is that correct? Mr. CRAFTS. Your
understanding is right.
Senator KUCHEL. There has been and is a jurisdictional dispute, as you know, between the Federal Government and the State governments with respect to problems of water and water development. I think it is the intention of the authors of this bill that that problem be avoided in the establishment of the wilderness system. I first raised this question, as the chairman well knows, several years ago when we had the first bill before us, but I want, to the extent that this constitutes any basis for intention of the legislation, to refer the gentleman from the Department of Agriculture to the section on page 14 starting with line 10, subsection (6):
Nothing in this Act shall constitute an express or implied claim or denial on the part of the Federal Government as to exemption from State water laws.
Reading further, subsection (7): Nothing in this Act shall be construed as affecting the jurisdiction or responsibilities of the several States with respect to wildlife and fish in the national forests.
The point I make, so that I am sure there will be no disagreement here, is that this legislation does not purport to touch the problem which continues to exist with respect to jurisdiction. That is another subject. It is one we intend to go into and we affirmatively state in this bill, or at least attempt to, that nothing herein shall affect that problem one way or the other.
Mr. Crafts. That is correct, Senator. Our understanding of the language of this bill is the same as yours,
Senator CARROLL. Mr. Chairman, while Senator Kuchel makes a very good point, why do you get yourselves involved in the question of taking over the jurisdiction of powersites! How could the Department of Agriculture or the Department of the Interior handle that issue, if you are taking that away from the Federal Power Commission, or do you intend to leave the mechanics of it there and just have the authority yourself? I wonder how you get yourself drawn into that situation.
Mr. FLORANCE. I don't think under the provisions of this bill that the Department of Agriculture would take over from the Federal Power Commission any of its authority. Whatever authority the Federal Power Commission has would still remain, but it would be subject to the limitations that the Congress would impose by the provisions of this bill.
Senator CARROLL. What are those limitations?
I thought you just got through saying you did take it away from them.
Mr. FLORANCE. In other words, if the President said that there could be water development within a wilderness area and those water developments were the kind that the Federal Power Commission would license, then that Commission would issue the licenses even though this bill were enacted.
On the other hand, the President could say, in effect, to the Federal Power Commission, “You cannot issue a license in this particular wilderness area.
Senator CARROLL. I have been one of the severe critics of the Federal Power Commission, but what I am thinking about is the licenses that have been granted and the jurisdiction of the Federal Power Commission, and now suddenly with this bill, if I understand your testimony, they no longer have power to issue licenses, and in a bill here where you are trying to set up a wilderness system why do you get involved in the powersites?
I just suggest that thought for you, but if you have something for the record and you want to explain how you get it, I would be glad to hear from you. This draws us into the water questions.
Mr. CRAFTS. There is no authority by this bill that is vested in the Secretary of Agriculture and taken away from the Federal Power Commission that doesn't now exist.
As it is now, the Federal Power Commission can issue the license. The Secretary of Agriculture can recommend for or against, but the authority for action is in the Federal Power Commission.
On these areas that would be covered by this bill, the Federal Power Commission could not do so unless the President recommended. The bill takes the power away from the Federal Power Commission and puts it in the President, not in either the Secretary of the Interior or the Secretary of Agriculture.
The reason you get into this, Senator CARROLL, is that you don't have wilderness if you have major dam and reservoir development. You either have it or you don't, and this is an attempt to place the discretion to decide in these areas in the President.
Senator CARROLL. In other words, to have a more unified policy you think it ought to be vested in the President?
Mr. FLORANCE. That is correct. Senator CARROLL. And I suppose there have been studies about the effect of this when you transfer this. This is a change now of power, isn't it?
Mr. FLORANCE. Yes.
Senator CARROLL. Let's face it. When you change that, what is the legal effects upon existing licenses which are subject to review?
Well, I suppose you will have witnesses here from the Federal Power Commission.
The CHAIRMAN. Yes, and I think there are no existing licenses in a single wilderness area so if the Commission moves into it we have to approve them anyhow.
Senator CARROLL. There are no licenses in the wilderness area? Mr. CRAFTS. I can't answer that question.
The CHAIRMAN. I think that is true. I ran into that question one time and I got an answer and I am sorry, but I may not be correct. At least we will find out from the Federal Power Commission.
Senator CARROLL. I suppose the Federal Power Commission will be in here to testify. I hope so.
The CHAIRMAN. We are about to adjourn and resume at 2 o'clock. I had a telegram handed to me from a fine lady. She says:
All success and blessings upon you if you can get passed today or tomorrow the wilderness bill which this country so sorely needs.
I regret the Senate is not in session. We cannot pass it today and we might not pass it tomorrow.
Mr. Secretary, before you came in I expressed my thanks publicly for the cooperation of the Department, Mr. McArdle and Mr. Crafts, and for the fine work they have done on this bill. I want you to know we appreciate the wonderful attitude they have taken all the way through
Secretary FREEMAN. Thank you.
Senator KUCHEL. Mr. Chairman, for the record may I ask the chairman's consent to place in the record a letter from the General Counsel of the Department of Agriculture to Mr. Stewart French with respect to the basis on which the Department's regulations have been formulated.
The CHAIRMAN. Without objection that may be done. (The document referred to follows:)
U.S. DEPARTMENT OF AGRICULTURE,
OFFICE OF THE GENERAL COUNSEL,
Washington, September 10, 1959. COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, U.S. Senate, Washington, D.C. (Attention Mr. Stewart French, Chief Counsel.)
GENTLEMEN : This is in response to Mr. French's letter of August 4, 1959, in which he stated that the committee has requested that this Department furnish a statement as to the basis of the asserted authority of the Secretary of Agriculture to set aside and declare certain areas of the lands of the United States to be "wilderness areas.”
The action of the Secretary of Agriculture in designating wilderness areas within the national forests is not based upon statutory authority expressly covering such areas. The action is taken under the broad general authority vested in the Secretary in connection with the administration of the national forests.
The general authority stems from article IV, section 3, clause 2 of the United States Constitution, the act of March 3, 1891, as amended (16 U.S.C. 471), and the act of June 4, 1897, as amended (16 U.S.C. 551). Briefly it may be outlined as follows:
The constitutional authorization gives Congress the power to dispose of and make needful regulations respecting property belonging to the United States. Accordingly, no appropriation of public land can be made for any purpose except by authority of Congress. The act of March 3, 1891, as amended, vested in the President authority to appropriate or reserve national forest lands from the public domain. With respect to the administration and regulation of lands so appropriated or reserved, Congress vested authority in the Secretary of Agriculture by the act of June 4, 1897, as amended.
Pursuant to this general authority the Secretary of Agriculture, on September 19, 1939, promulgated a regulation designated by the Forest Service as Regulation U-1 (36 C.F.R. 251.20). The regulation provides that upon recommendation of the Chief, Forest Service, the Secretary may designate tracts of national forest lands as "wilderness areas."
The action taken by the Secretary of Agriculture to designate a wilderness area is not considered an appropriation or disposition of land within the meaning of the constitutional provision mentioned above. Instead, it is considered an action with respect to land which has previously been appropriated by the President, pursuant to authority granted by Congress, within that meaning. It is a designation of the appropriated land for purposes determined by the Secretary to be proper in carrying out the responsibilities given him to regulate the occupancy and use of the national forests.
We have no record of any formal opinion of this office as to the legal power of the Secretary to designate a wilderness area, but Regulation U-1 was approved, by this office for legal sufficiency. Likewise, we know of no formal opinion of the Attorney General or decision of any court passing upon the specific question.
With respect to a very similar situation, however, consideration was given by the court in United States v. Perko, 133 F. Supp. 564 (D.C., D. Minn., 1955) to rights relative to use of a roadless area. The action was one to enjoin the defendants from operating motor vehicles and otherwise trespassing on the Superior Roadless Area within the Superior National Forest. A temporary injunction was granted and later made permanent. United States v. Perko, 141 F. Supp. 372 (D.C., D. Minn., 1956). The Superior Roadless Area had been established by the Secretary of Agriculture under authority of the act of June 4, 1897, supra, and his Regulation 1–3 (36 C.F.R. 251.22). In reviewing the action for injunction and commenting on the authority of the Secretary, the Court recognized the authority under the 1897 act, as amended, and also commented that there seemed to be nothing unconstitutional about the methods used in establishing the Superior Roadless Area, the action being one in which the Secretary was pursuing the dictation of Congress in ordering him to carry out a policy for the use and occupancy of the Superior National Forest.
We trust that the above will satisfactorily serve as an outline of the basis on which wilderness areas are designated by the Secretary of Agriculture. Sincerely yours,
FRANK A. BARRETT, General Counsel. The CHAIRMAN. The committee will stand adjourned until 2 p.m.
(Whereupon, at 12:35 p.m. the committee was recessed to reconvene at 2 p.m. the same day.)
(The statements and communications previously directed to be inserted in the hearing record appear in the appendix to this record.)
The committee reconvened at 2 p.m., Senator Clinton P. Anderson, chairman of the committee, presiding.
The CHAIRMAN. We will be in order.
The first witness of the afternoon will be Mr. John C. Mason, General Counsel, Federal Power Commission, accompanied by William R. Farley, Chief, Licensed Projects Division, Bureau of Power, Federal Power Commission.
Will you come up, please.
I hope as you go along you will address yourself to this question that was raised this morning, about whether this bill changes the responsibility of the Federal Power Commission, and if so, in what area and where. I have some question as to how many projects might be started in what are now wilderness areas.
STATEMENT OF JOHN C. MASON, GENERAL COUNSEL, FEDERAL
POWER COMMISSION; ACCOMPANIED BY WILLIAM R. FARLEY, CHIEF, LICENSED PROJECTS DIVISION, BUREAU OF POWER
Mr. Mason. Thank you very much, Mr. Chairman.
you indicated this morning, the Commission has filed with your committee a report on this bill, which I recall you have already directed be included in the record. I am going to refer to that first to