DEPARTMENT OF AGRICULTURE, Hon. N. J. SINNOTT, Chairman Committee on the Public Lands, House of Representatives. DEAR MR. SINNOTT: Under date of April 11, 1921, the Supreme Court of the United States handed down a decision in the case of the Northern Pacific Railway Co. v. The United States (256 U. S. 51), in which it was held that the measure of the Northern Pacific land grant under the act of July 2, 1864 (13 Stat. 365), and the joint resoTution of May 31, 1870 (16 Stat. 378), was the aggregate of the oddnumbered sections within the place limits of the grant unless (a) part of the grant included only a moiety of those sections or (b) the route of the Northern Pacific and that of another road with a prior land grant were found to be upon the same general line, in which event certain deductions were to be made. The decision likewise held that the odd-numbered sections within the indemnity limits of the grant could not be withdrawn for governmental purposes if they were needed to satisfy the acreage of the grant. The previous position of the Government had been that the land within the indemnity limits of the grant could be withdrawn for governmental purposes if the withdrawals were made prior in time to the actual selection of the indemnity lands by the Northern Pacific. By reason of the Supreme Court decision the Interior Department has undertaken an adjustment of the Northern Pacific grant. The preliminary figures that have been compiled under this adjustment indicate that the acreage of the grant may be deficient, with the consequence that, should the preliminary figures become final, several million acres of national forest and other lands which have heretofore been withdrawn for governmental purposes may pass to the Northern Pacific. The decision of the Supreme Court was based upon the record before it. It did not take into consideration, and properly so, many questions of law and fact which arise in connection with the grant and which would be germane to an inquiry made in connection therewith by Congress. There are large public interests involved, and to the end that Congress may have opportunity to consider the matter, a proposed joint resolution is transmitted herewith for your consideration. A similar letter has been addressed to the Hon. Irvine L. Lenroot, chairman of the Committee on Public Lands and Surveys, United States Senate. Very sincerely yours, The SECRETARY OF THE INTERIOR. HENRY C. WALLACE, Secretary of Agriculture. HUBERT WORK, Secretary of the Interior. JANUARY 24, 1924. DEAR MR. SECRETARY: Under date of December 19, 1923, the Commissioner of the General Land Office transmitted to the Forester, Department of Agriculture, for his consideration, a copy of the tentative adjustment of the land grants to the Northern Pacific Railroad Co. (now railway company), under the act of July 2, 1864, and the joint resolution of May 31, 1870. By letter of January 12, 1924, the Forester advised the commissioner at some length of his views in the matter. A copy of the Forester's letter was also forwarded to the Attorney General and to Britton & Gray, the local attorneys for the Northern Pacific. I have given the case my personal attention and it is my feeling that these Northern Pacific land grants can not be finally adjusted in fairness to the United States in the absence of further action by Congress. It is my opinion, in view of the large public interests involved, that the matter should be immediately brought to the attention of Congress for such action as it may deem proper. I feel that Congress, if it desires to exercise the authority it has, can save to the United States several millions of acres of national forest lands which may otherwise pass to the Northern Pacific Railroad Co. Accordingly I have had prepared the inclosed draft of a joint resolution, which I offer for your consideration. If you are of the opinion that it will meet the situation, may I ask that you join with me in presenting it as soon as possible, through the proper channels, to Congress? Sincerely yours, HENRY C. WALLACE, Secretary. JOINT RESOLUTION. Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the Interior is hereby directed to withhold his approval of the adjustment of the Northern Pacific land grants under the act of July 2, 1864, and the joint resolution of May 31, 1870, and he is also hereby directed to withhold the issuance of any further patents under the said act and the said resolution or any legislative enactments supplemental thereto or connected therewith, until after Congress shall have made a full and complete inquiry into the said land grants and the acts supplemental thereto for the purpose of considering legislation to meet the respective rights of the Northern Pacific Railroad Co. and the United States in the premises. 2. The Secretary of the Interior is hereby directed to advise Congress of the status of the said Northern Pacific land grants, recommending such action as he believes right and proper for the further adjustment thereof. JANUARY 16, 1924. Messrs. BRITTON & GRAY, Attorneys at Law, Washington, D. C. GENTLEMEN: Please find inclosed a copy of the Acting Forester's letter of January 12, 1924 (with brief), in reply to the letter of December 19, 1923, from the Commissioner of the General Land Office, in connection with the tentative adjustment of the Northern Pacific land grant. Very truly yours, E. A. SHERMAN, Acting Forester. JANUARY 15, 1924. The ATTORNEY GENERAL, Washington, D. C. DEAR GENERAL: Under date of December 19, 1923, the Commissioner of the General Land Office transmitted to the Forester, United States Department of Agriculture, a copy of the tentative adjustment figures pertaining to the Northern Pacific land grant. Copies of these figures were sent at the same time to you and to Britton & Gray, resident attorneys for the Northern Pacific. Following the suggestion contained in the commissioner's letter, a copy of the Acting Forester's letter of January 12, 1924, and the brief accompanying it, in reply to the commissioner's letter, are inclosed herewith for your consideration. Sincerely yours, HOWARD M. GORE, Acting Secretary. JANUARY 17, 1924. The COMMISSIONER OF THE GENERAL LAND OFFICE. DEAR SIR: In reference to your letter (1002850 "G" VD) of December 19, 1923: Please be advised that under letter dated January 15, 1924, the Acting Secretary of Agriculture sent to the Attorney General, for his information, a copy of my letter of January 12, 1924, to you, and a copy of the brief referred to therein pertaining to the adjustment of the Northern Pacific land grant. Very truly yours, L. F. KNEIPP, Acting Forester. JANUARY 12, 1924. The COMMISSIONER OF THE GENERAL LAND OFFICE. DEAR SIR: I am in receipt of your letter, 1002850 "G" VD, of December 19, 1923, with which you forwarded for my comment the tentative adjustment of the grants to the Northern Pacific Railroad (now Railway) Co. under the act of July 2, 1864 (13 Stat. 365), and under the joint resolution of May 31, 1870 (16 Stat. 368). Receipt is acknowledged of the tabulations A to V which were forwarded with your letter. I am grateful for the opportunity you have afforded me to discuss the tentative adjustments of the two grants, inasmuch as the national forests are directly involved and thousands of acres of Government land therein, which have been under the administration of the Government for many years, will pass into the private ownership of the Northern Pacific if the tentative adjustment becomes final. The importance of the case to the United States becomes immediately apparent when it is realized that between 2,500,000 and 3,000,000 acres of national forest lands may pass to the Northern Pacific as a result of the adjustment. Your tentative adjustment was prepared primarily to meet the decision of the Supreme Court in the case of the Northern Pacific Railroad (256 U. S. 51), a case which was brought by the Government in the lower courts upon the theory that the Government had the right to withdraw for national-forest purposes certain odd-numbered sections within the indemnity limits of the Northern Pacific land grant, the withdrawals having been made prior in time to the filing by the railroad company of indemnity selections therefor. This view of the law prevailed in your department for a number of years, and so, in the present case, when the Northern Pacific filed an indemnity selection for certain lands which had been previously withdrawn for the Gallatin National Forest, and this selection through error was approved to the railroad, a suit was brought to cancel the patent that had been issued to the company. The suit was filed in the District Court in Montana, appealed to the Circuit Court of Appeals in San Francisco, and finally reached by the Supreme Court of the United States, where it was temporarily but not finally disposed of in the decision of April 11, 1921 (256 U. S. 51). The Supreme Court remanded the case for further action. In defining the measure of the grant the Supreme Court said: The aggregate of the odd-numbered sections within the place limits is the correct measure of the grant unless (a) part of the grant included only a moiety of those sections, or (b) the route of this road and that of another with a prior land grant were found to be upon the same general line, in which event a stated deduction was to be made from the amount of land granted to this company. There would be no right of indemnity as respects the moiety not included nor as respects the lands required to be deducted. The Supreme Court did not hold the national forest withdrawals void but said: We perceive no reason to doubt that lands in the indemnity limits may be reserved or appropriated where what remains is sufficient to satisfy all the losses. According to the figures set out in your memorandum, the area of the grant of July 2, 1864, is 41,150,903.02 acres, and the area of the additional grant under the joint resolution of May 31, 1870, is 2,838,958.02 acres. On December 31, 1921, the company was chargeable with 38,447,632.9 acres in the primary and indemnity limits under the grant of 1864, leaving this grant deficient at that time 2,703,270.12 acres, and on the same date the company was chargeable with 1,608,515.63 acres in the primary and indemnity limits under the grant made by the joint resolution of May 31, 1870, leaving this supplemental grant deficient at that time 1,230,442.39 acres. Your figures, of course, are gross and do not show the deductions that should be made as indicated in your memorandum, neither do they show other deductions which, in my judgment, should be made. The gross deficiencies in the two grants on December 31, 1921, aggregated 3,933,712.51 acres. On December 31, 1921, the withdrawn, unselected, odd-numbered sections within the indemnity limits of the two grants and withdrawn for national forest purposes amounted to approximately 2,600,000 acres, of which approximately 1,500,000 acres were in the first indemnity limits and 1,100,000 acres were in the second indemnity limits. Suggestion 1: Starting in at this point, my first suggestion is that the tentative adjustment be supplemented to show that the lands within the second indemnity belt within the States that were Territories on July 2, 1864, are not subject to selection in satisfaction of mineral losses sustained within the primary limits. The act of July 2, 1864, excluded mineral lands from the operation of the act, allowing indemnity therefor from odd-numbered, unoccupied, and unappropriated nonmineral lands within 50 miles of the line of the road. The primary limits of the grant are 40 miles in width on either side of the railroad, and the first indemnity belt extends for 10 miles on either side of the primary limits, the exterior limits of the first indemnity belt being 50 miles from the line of the road and coincident with the 50-mile limit provided in the act of July 2, 1864, for mineral indemnity selections. The joint resolution of May 31, 1870, authorizing the second indemnity belt, specifically excluded the second indemnity belt from selection in satisfaction of mineral losses. This being true, the tentative adjustment should show the amount of the unsatisfied losses that are mineral in character inasmuch as a matter of law, such mineral losses can not be satisfied by the making of mineral indemnity selections in the second indemnity belt in any of the States that were Territories on July 2, 1864. In the States that were States July 2, 1864, the primary limits of the grant were but 20 miles in width. Therefore, the 50-mile limit for mineral indemnity selections extends 10 miles beyond the second indemnity limit. Furthermore, withdrawn land within the second indeninity belt is subject to rule laid down by the Supreme Court in 256 U. S. 51, to wit, that if at the date of the withdrawal of the lands within the second indemnity belt there were sufficient lands in the second indemnity belt other than the withdrawn lands to satisfy the losses that could, as a matter of law, be satisfied therein, the withdrawals were right and proper. The right of the company to make any selections in the second indemnity belt is confined to losses sustained between July 2, 1864, and the date of the definite location of the railroad. The tentative adjustment figures and the statement accompanying the same should be clear on this point. Your tentative adjustment should contain a statement showing the unsatisfied mineral losses, and the statement should indicate that this mineral loss can not be satisfied under the law within the second indemnity limits. Approximately 1,000,000 acres will be saved to the national forests if the Northern Pacific is not allowed to make mineral indemnity selections in the second indemnity belt. Suggestion 2: On pages 5 to 8, inclusive, of your memorandum you state that 370,378 acres should be deducted from the acreage of Northern Pacific grant, on account of the conflict between the landgrant limits of the Portage, Winnebago & Superior Railroad and the Northern Pacific. The conflicting area should be excluded from the Northern Pacific grant, for the reasons given in your memorandum and for the additional reason that the Supreme Court in defining the measure of the Northern Pacific grant (256 U. S. 51) states specifically that where the odd-numbered sections along the route of the Northern Pacific and that of another road with a prior land grant were found to be upon the same general line, a stated deduction was to be made from the land granted to the Northern Pacific, and that for such lands "there would be no right to indemnity as respects the moiety not included nor as respects the lands required to be deducted." Suggestion 3: I am glad you have accepted the suggestion from this office, wherein your attention was invited to the erroneous lateral |