tend to impose this requirement on itself or its own instrumentalities wherever they may engage in such retail operations. While the sales of oleomargarine to employees by the commissary of the Menominee Indian Mills cannot be considered as governmental operations, the general activity of the commissary is undoubtedly a Government activity. Thus, I held in my opinion of May 31, 1940, 57 I. D. 129, supra, in considering the Federal tax on gasoline sold through the commissary of the mills, that, "The management and supervision of the mills is clearly an Indian Service operation." I also pointed out that:

The proceeds from the operations of the mills are not wholly devoted to per capita payments but large sums are used to carry on Government functions on the Menominee Reservation which otherwise would be paid for from Government funds, * *. Federal use of the proceeds of the operations is significant in determining the application to the operations of a Federal tax, which reduces such proceeds, although it might not have such weight in determining the application of Federal laws regulating the method of operations.

In other words, a clear distinction would appear to exist between a pro-rata tax on oleomargarine to be carried in the final analysis by the individual employee who purchases it, and a license fee on the operations of the commissary which would result in diminishing the overall revenue of the mills themselves. It should be added that without the payment of such a license fee a retailer would not be permitted to engage in the sale of oleomargarine. There would appear to be no reason for the assumption that the Federal Government intended by this provision to restrict its own operations and those of its instrumentalities. It is, therefore, my conclusion that the mills may sell oleomargarine at retail without the payment of the license fee prescribed by section 3200 (c).

Approved:

OSCAR L. CHAPMAN,

Assistant Secretary.

EXCHANGE OF TIMBER ON PARK LANDS FOR PRIVATELY OWNED LANDS WITHIN THE BOUNDARIES OF NATIONAL PARKS

Opinion, January 21, 1942

TIMBER ON PARK LANDS-EXCHANGE-SECTION 3 OF THE ACT OF AUGUst 25, 1916. Whether the Secretary of the Interior is authorized under section 3 of the Act of August 25, 1916, to exchange timber on park lands within the Olympic National Park for privately owned cut-over lands within the boundaries of said park. Held, section 3 of the act of August 25, 1916, authorizes the exchange of timber on park lands for privately owned cut-over lands where the cutting of the timber is found by the Secretary of the Interior to be required for the purposes set forth in said section.

January 21, 1942

MARGOLD, Solicitor:

My opinion has been requested as to whether the Secretary of the Interior is authorized under section 3 of the act of August 25, 1916, to enter into an agreement to exchange timber on park lands within. the Olympic National Park for privately owned cut-over lands within the boundaries of said park when it appears that the timber on the park lands is isolated and exposed to windthrow, thereby causing serious fire hazard as well as possible beetle infestation, and the timber and the cut-over lands to be exchanged have equal value.

In my opinion the Secretary of the Interior is authorized to enter into such an agreement.

Section 3 of the act of August 25, 1916 (39 Stat. 535, 16 U. S. C. sec. 3), provides in part as follows:

He [The Secretary of the Interior] may also, upon terms and conditions to be fixed by him, sell or dispose of timber in those cases where in his judgment the cutting of such timber is required in order to control the attacks of insects or diseases or otherwise conserve the scenery or the natural or historic objects in any such park, monument, or reservation.

These broad provisions authorizing the Secretary of the Interior to "sell or dispose of timber" upon "terms and conditions" to be fixed by him are by their terms comprehensive enough to warrant any mode of alienation of such timber and upon any terms and conditions which, under the circumstances of a given case, may be reasonable and appropriate. Cf. Op. Atty. Gen., dated September 29, 1937 (39 Op. Atty. Gen. 107), construing section 5 of the Emergency Relief Appropriation Act of 1935 (49 Stat. 115, 118); and State ex rel. Cross v. Board of Land Commissioners, 50 Wyo. 181, 62 P. (2d) 516, 517. Consequently, unless restricted by other statutory provisions, an exchange of timber required to be cut for the reasons set forth in the statute for lands of at least equivalent value is clearly within the scope of the act. This is especially true when it appears that the land to be received in the exchange, as in the instant case, will contribute to the conservation of the timber and the scenery within the park. Moreover, the acquisition by the Secretary of privately owned lands within national parks is in accord with general congressional policy. For example, the act of June 5, 1920 (41 Stat. 917, 16 U. S. C. sec. 6), provides that:

The Secretary of the Interior in his administration of the National Park Service is authorized, in his discretion, to accept patented lands, rights-of-way over patented lands or other lands, buildings, or other property within the various national parks and national monuments, and moneys which may be donated for the purposes of the national park and monument system.

The only statute which might conceivably restrict the broad authority of the 1916 act is section 3736 of the Revised Statutes, which provides that "No land shall be purchased on account of the United

States, except under a law authorizing such purchase." The Attorney General has held that section 3736 is applicable to exchanges and to all acquisitions of estates in realty by the United States for which a substantial consideration is paid and that consideration is not limited to money to be paid out of the public Treasury (35 Op. Atty. Gen. 183). But even if the exchange here contemplated were to be considered a purchase within the meaning of section 3736, since the exchange is authorized "by law" to wit, the 1916 act, it cannot reasonably be said to be prohibited by that section.

In my opinion, therefore, section 3 of the act of 1916 authorizes the exchange of timber on park lands for privately owned cut-over lands within national parks where the cutting of the timber is found by the Secretary to be required for the purposes set forth in section 3. Approved:

JOHN J. DEMPSEY,

Under Secretary.

MAINTENANCE AND CONTROL OF STATE AND COUNTY HIGHWAYS WITHIN THE BOUNDARIES OF OLYMPIC NATIONAL PARK

Opinion, January 21, 1942

SECRETARY OF THE INTERIOR NATIONAL PARK SERVICE NATIONAL PARKS-JURISDICTION OVER HIGHWAYS WITHIN,

Cession by the State of Washington by act approved March 8, 1941 (ch. 51, Laws of Washington, 1941), of its jurisdiction over lands included in Olympic National Park, reserving only right to serve process and certain rights of taxation, upon acceptance thereof by the United States, terminates the right or duty of State and counties to maintain and police the highways therein and the Government of the United States will assume exclusive maintenance and control under broad powers of the Secretary of the Interior in relation to roads in, and approach roads to, national parks under the acts of April 9, 1924 (43 Stat. 90, 16 U. S. C. sec. 8), and January 31, 1931 (46 Stat. 1053, 16 U. S. C. secs. 8a, 8b), and the encouragement of travel within the United States under the act of July 19, 1940 (54 Stat. 773).

MARGOLD, Solicitor:

In connection with the establishment of the Olympic National Park in the State of Washington and the cession by the State of Washington to the United States of its jurisdiction in and over the lands included in the park, the National Park Service has advised me that it is administratively desirable that the State continue to maintain and police the 14 miles of State Highway No. 9 which are within the park area, and has requested my opinion on the following questions:

1. If the State's cession of jurisdiction is accepted by the United States (a) has the State retained the right to maintain and police State Road No. 9 within

January 21, 1942

the area covered by the cession of jurisdiction, and (b) have the counties also retained the right to maintain and police county roads within such area?

2. If the above-mentioned questions are answered in the affirmative, will the Federal Government have authority to expend roads and trails funds on (a) the portions of the state and county roads over government lands, and (b) on portions of the state and county roads crossing privately owned lands?

For the reasons hereinafter set forth my answer to the first question is in the negative. Hence an answer to the second question is not necessary.

Congress by act of June 20, 1938 (52 Stat. 1241), established the Olympic National Park, and therein provided that the administration, protection and development of the park shall be exercised under the direction of the Secretary of the Interior by the National Park Service in accordance with the provisions of the act of August 25, 1916, as amended (39 Stat. 535, 16 U. S. C. sec. 1, et seq.). By the provisions of the last-mentioned act and amendments thereto the National Park Service is required to promote and regulate the use of the national parks by such means and measures as conform to the fundamental purpose of the parks, and, is also required, under the direction of the Secretary of the Interior, to supervise, manage and control the national parks under the jurisdiction of the Department of the Interior. By the provisions of the act of April 9, 1924 (43 Stat. 90, 16 U. S. C. sec. 8), the Secretary of the Interior, in his administration of the National Park Service, is authorized to construct, reconstruct and improve roads and trails and necessary bridges in the national parks under the jurisdiction of the Department of the Interior. By the provisions of the act of January 31, 1931 (46 Stat. 1053, 16 U. S. C. secs. 8a, 8b), the Secretary of the Interior is authorized to designate, construct, reconstruct and improve national park approach roads. By the act of July 19, 1940 (54 Stat. 773), the Secretary is authorized and directed, through the National Park Service, to encourage, promote and develop travel within the United States and to administer all existing travel promotion functions of the Department of the Interior through such service.

All highways in a national park fall within its external boundaries and naturally become subject to Federal control unless excluded by the act of Congress creating the park or reserved by the State in its cession of jurisdiction. Robbins v. United States, 284 Fed. 39, 44 (C. C. A. 8). To the same effect are: Colorado v. Toll, 268 U. S. 228; Opinion of Solicitor, Department of the Interior, M. 29807, July 28, 1938; 35 Op. Atty. Gen. 305, 309.

The legislature of the State of Washington, by act approved March 8, 1941 (ch. 51, Laws of Washington, 1941), ceded to the United States

exclusive jurisdiction over the territory within the exterior boundaries of the Olympic National Park in terms as follows:

SECTION 1. Exclusive jurisdiction shall be, and the same is hereby ceded to the United States over and within all the territory that is now included in that tract of land in the State of Washington, set aside for the purposes of a national park, and known as the Olympic National Park; saving, however, to the said state, the right to serve civil and criminal process within the limits of the aforesaid park, in suits or prosecutions for or on account of rights acquired, obligations incurred or crimes committed in said state, but outside of said park; and saving further to the said state the right to tax persons and corporations, their franchises and property on the lands included in said park: Provided, however, This jurisdiction shall not vest until the United States, through the proper officer, notifies the Governor of this state that they assume police or military jurisdiction over said park.

A State has the right to incorporate reservations and conditions in its act of cession of jurisdiction to the United States which are not inconsistent with the carrying out of the purpose of the acquisition. of that jurisdiction by the United States. United States v. Unzeuta, 281 U. S. 138; James v. Dravo Contracting Co., 302 U. S. 134, 146–149. The act of the State in ceding full jurisdiction to the United States without reservation is sufficient to cede or transfer to the United States such interest, jurisdiction and control as the State possesses over the highways in the park. Robbins v. United States, supra.

It will be observed that there is no reservation by the State of any highways or roads of any kind, and no reservation of any right to maintain or control any highway or road. Obviously the reservation of an existing highway within a ceded area for a national park would not necessarily be inconsistent with the carrying out of the purpose of the park. It must be presumed, therefore, that the State did not intend to reserve any road rights. The national parks being established primarily for the enjoyment of the general public, a road system within the parks and approach roads to the parks are absolute necessities. Both the State and the United States are interested therein. The reservation on the part of a State of a highway would give the State the right to unmolested use of that highway so long as such use did not become repugnant to its grant or to the purpose of the national park. In this sense it would be tantamount to a joint use (16 Op. Atty. Gen. 592, 593, 594).

There being no reservation in the cession act of the State of Washington relating to highways, and, in view of the broad powers given the Secretary of the Interior in relation to the construction, maintenance and improvement of roads in national parks and approach roads to national parks, and considering the necessity and utility of such roads for use by the general public in visiting the national parks, it is manifest that Congress contemplates, if it accepts the State's sur