The CHAIRMAN. I would like to get that clear. If I understood Mr. Beck and another gentleman that testified on that subject, they were prohibited from salting within this 3-mile strip until after a certain date.

Mr. WINKLER. Yes. That is on this theory: If we are to continue on the on-and-off basis we want to treat this range as a unit, because it is on a summer basis and the theory is that 50 per cent of the stock will graze outside and 50 per cent inside, and you ought to keep off this range outside until the summer period begins, so that their drift will be approximately uniform. Of course, there will not be absolute uniformity, but there will be approximately. The theory was that if we keep off of that and salt that the same as we do the inside range, then the on-and-off ratio would be consistent with the conditions of the ground. If all the stock are permitted to go on the forest we ought not to have an on-and-off basis, and if all the forage is utilized outside, or substantially all, before the season opens inside the probabilities are that the bulk of the stock is going inside. The CHAIRMAN. Has the working out of that established the correctness of the theory?

Mr. WINKLER. I do not think it has been actually applied to date. My understanding is that a final decision on that question has not been definitely reached. It is a problem that is just being worked

out.

The CHAIRMAN. Was this theory determined upon by the Forest Service and the local Forest Service officials or was it a theory worked out between the livestock men and the bureau?

Mr. WINKLER. My understanding is that it is an effort on the part of the Forest Service to work out that problem with the local stock

men.

Mr. BECK. For three or four years the Forest Service officials had insisted on our letting them take that 3 miles into the forest and we have been fighting that. We don't want it in the forest, and they want it in. They have come up time after time and tried to get us to agree to it, and we are still fighting it, because it would take a lot of our ranches into the forest. That is our situation.

Mr. WINKLER. So far as the Forest Service is concerned we are not particularly concerned as to whether that area be added to the forest or not. The only point we have attempted to make is that here is a logical summer unit, and if the boundary were down here. then it would be an "on" proposition, but with the boundary as it is, splitting the natural unit, we are trying to make it convenient for the stockmen by an on-and-off system.

The CHAIRMAN. How do you determine the number of stock to graze in the forest reserves on which to base your charge?

Mr. WINKLER. That is based on checks that have been made over periods of a year, the best counts we could make as to the number of stock that graze inside, and we encourage the stockmen to get at least the 50 per cent of the stock on the forest.

The CHAIRMAN. As I understood some of the witnesses that have testified here to-day, there were about 100,000 or 120,000 head of stock in this area adjacent to the forest reserve and about 15,000 of that number, possibly, enter the forest.

Mr. WINKLER. You see, Senator, that country is split up into several different ranges-the country inside the forest reserve I don't know off hand. What is the authorization for that Big Piney unit? Mr. FAVRE. The Big Piney unit, I think, is 5,000, and the Sherman unit, which goes with it, is 2,200, so there is about 7,500 head that go over on the forest.

Mr. O'NEILL. I think I could help you to explain the situation so we could get it. The forest reserve has a strip of land there permitted to the cattle of about 3 miles. There is 25 miles outside of the forest reserve that the cattle go on from the 1st of May, and this 25 miles is used against the 3 miles in the forest. Now, the forest has made more money out of that three times over than what an individual could get out of it if he had it fenced. Of course, they put up that 3 miles against the 3 miles in the forest, and that leaves us about 22 miles east of that where the cattle are on most of the year.

The CHAIRMAN. Do not the cattle go beyond the 3 miles within the forest reserve and go on into the reserve?

Mr. O'NEILL. That is permitted to sheep.

The CHAIRMAN. It is only a 3-mile cattle restriction?

Mr. O'NEILL. Yes; practically 3 miles-not exactly-but it is practically a 3-mile strip in there. The cattle have the 3 miles and the sheep beyond that, and then there is 25 miles outside of the forest

reserve.

The CHAIRMAN. Then the cattle graze in common with the sheep on beyond?

Mr. O'NEILL. Well, some; not very much, because the nature of a sheep herder is if cattle come to him to take his sheep off. And we don't particularly want them on there. We only have the 3-mile strip. This thing of renting it to the sheepmen and then to the cattlemen is like renting a house to every fellow that comes along. Mr. WINKLER. Senator, may I suggest that when I get through Supervisor Favre be given a few minutes to clear up this point? He is more familiar with the proposition.

The CHAIRMAN. Yes; I would like to have that cleared up. There has never been any question, I take it, but what you did attempt to control the 3 miles of public domain outside of the forest reserve through permitting the grazing of the 3-mile strip within the forest reserve?

Mr. WINKLER. We are trying to create a condition there, Senator, which will make it as convenient for the stockmen as possible, and we say to them that if we allow a 50 per cent on-and-off basis we do not want the outside range peeled of vegetation before the summer season begins.

Mr. BOWDEN. But it results in control of the public domain by the Forest Service?

Mr. WINKLER. No.

Mr. BOWDEN. Why not?

Mr. WINKLER. We are willing to do this any time, to say, "Put your permitted stock on the forest and keep the others off." We are perfectly willing to do that any time, but that is not a practical thing for the stockmen.

The CHAIRMAN. As to the matter of keeping the stock off from the forest reserves can you compel the stock men to keep their stock off the forest reserves in the State of Wyoming?

Mr. WINKLER. Yes.

The CHAIRMAN. If their stock get on the forest they are liable for trespass?

Mr.WINKLER. Yes, sir.

The CHAIRMAN. That has been established by trial?

Mr. WINKLER. Yes, sir.

Mr. BOWDEN. Does the State have a fence rule, that you can not bring a trespass action unless the area upon which the stock stray is fenced?

Mr. WINKLER. I don't know whether Wyoming has a fence law

or not.

Mr. O'NEILL. They have a local fence law.

Mr. BOWDEN. How can you claim trespass if you have no fence? Mr. WINKLER. The Supreme Court said we could.

The CHAIRMAN. Then could an individual with an unfenced area claim trespass for stock running at large?

Mr. O'NEILL. No, sir; that is the decision of the Supreme Court. Mr. WINKLER. I suppose he could.

The CHAIRMAN. The Supreme Court has decided that the Forest Service can claim trespass?

Mr. BOWDEN. Do you know of any decision on that?

Mr. TALIAFERRO. Yes; there have been a good many decisions on that. Livestock following their own inclination to graze upon unfenced lands outside of the national forest, whether privately owned or not I say outside of the national forest, because within the forest the regulations of the Forest Service prevail-are not trespassing and the owners are not subject to damages, by the decisions of our Supreme Court; but if livestock controlled by human agencies go upon unfenced lands the owners of the stock are liable for trespass damages. That is the law.

The CHAIRMAN. I presume they hold your rule or regulation here about the trespassing of stock running at large in the forest reserve has all the weight and effect of law, and therefore it would become the law.

Mr. O'NEILL. Senator, can I speak for a moment? The point that I am making is that the Forest Service is getting more out of this strip of land than out of any strip of land I know of any place. I have had pastures and run in pastures for 20 years, and I believe I have an idea of the carrying capacity of a pasture. By the fact of them having that in this way they have been collecting more money than they were entitled to for this 3-mile strip of land.

Mr. WINKLER. We collect fees, of course, Senator, only for that portion of the stock that is entitled to go in the forest. We do not collect any fees on the 50 per cent that stay outside.

The CHAIRMAN. In this particular instance, it occurs to me, from what we have heard here, that the regulation of the Forest Service supersedes the law of the State of Wyoming. The law of the State of Wyoming provides that stock running at large, if they go up on an unfenced privately owned area, are not trespassing, but the Forest Service has promulgated a rule that supersedes that law, so far as the forest area is concerned that lies within the State.

Mr. WINKLER. Of course, our authority was granted to the Secretary of Agriculture by Congress.

The CHAIRMAN. Yes; to promulgate rules and regulations for the purpose of carrying out the purpose and intent of the act.

Mr. WINKLER. The grazing of livestock on the national forest without a permit is trespass.

The CHAIRMAN. Under the rules and regulations of the Forest Service.

Mr. WINKLER. Yes, sir; of course.

The CHAIRMAN. Do you wish Mr. Favre to take your place for a moment, Mr. Winkler?

Mr. WINKLER. Yes.

STATEMENT OF C. E. FAVRE, FOREST SUPERVISOR, WYOMING FOREST, KEMMERER, WYO.

The CHAIRMAN. Mr. Favre, will you give your name and address and state your official position to the reporter?

Mr. FAVRE. C. E. Favre, forest supervisor, Wyoming Forest., Kemmerer, Wyo. Previous occupation: Raised on a farm in western Idaho and born in Oregon. Sheep herding and cattle grazing during early life.

The CHAIRMAN. Mr. Favre, you have heard the testimony here to-day relative to the 3-mile strip?

Mr. FAVRE. Yes, sir.

The CHAIRMAN. Without the forest reserve?

Mr. FAVRE. Yes.

The CHAIRMAN. Will you explain in your own way to this committee the operation?

Mr. FAVRE. Under the regulations it has been provided that where a forest line splits a unit of range that in order to facilitate handling the stock so that it won't be necessary to hurt the line, that we may issue a permit for the number of stock involved on an on-and-off proposition. The percentage run on the forest are the ones we charge for, and those outside are not charged. However, the numbers outside are supposed to be run under the same regulation as those on the forest in order to keep the drift to the same thing. We Could not very well regulate the numbers if those outside were handled on a different basis. That is, if they did not put salt out there, or did not otherwise distribute them they would be pretty apt to drift on the forest, because on the forest it is the usual practice to salt the range in order to secure its utilization.

As to the 3-mile limit, we do not insist on the 3 miles. I think that has grown up through press business of some kind; somebody made that statement. In fact, I told the president of the association that I did not care; that the association could draw their own line down there somewhere, but the percentage would have to be made to meet it. Whatever the percentage of the carrying capacity was outside, out there, why, the same carrying capacity inside.

The question of use of that range on the outside, the 25-mile strip, or the 22-mile strip, whatever you prefer to call it, of course, is used perhaps from the 1st of April to the end of December, is it not?

Mr. O'NEIL. Oh, it is about the 1st of May. One year with another it would average about the 1st of May.

Mr. FAVRE. Well, there can be some eight months' use of all this open domain, and as I understand it the association would not desire. 43213-25-PT 11

the whole of it to be used on an on-and-off unit. In fact, I don't think it would come under the regulation. There is a ridge of hills that comes down and joins the plain at about a distance of 3 miles from the forest. That, in discussing it with the president of the association last summer, seemed to be a pretty reasonable line that would make a natural break between the handling of the stock on the spring range and the handling of the stock on the summer range. And from the base of that hill on up to the sheep line on the forest, which is some-well, I won't venture how many miles-it varies; 3 or 4 miles, I would say, generally speaking, that constitutes our summer unit.

The CHAIRMAN. Mr. Favre, what would happen to permittee A. whose cattle graze within the forest, if on the 1st day of May he should salt his cattle within 1 mile of the boundary of the forest?

Mr. FAVRE. If he had an on-and-off permit his off portion of the permit would be canceled. That privilege of allowing the stock on and off would be canceled, and that is all. We would just forget about it. Because if they would all do the same thing, well, we would hold them off. That would cut the 50 percentage off. No trespass action, nothing to it. It would just merely be a violation of the permit that we give them for that privilege of being able to use the range under those conditions, which we figure, and I think the association does, is the sensible way to handle that piece of range. We could not very well handle it any other way. It is a matter of keeping us out of lawsuits. Try to handle and solve the problem, it seems to me, rather than oppose. I am perfectly agreeable any time the association wants us to do so; I am perfectly willing to give them a straight-on permit for their regular permit number. We will have nothing to do with the outside range then.

Mr. O'NEIL. Well, your forest would not run the 50 per cent. You have only got 3 miles against the 25 miles.

Mr. FAVRE. Twenty-five miles for about eight months of the year. Our season is a four-month season. Now, you take your range on Sherman unit, there is admittedly plenty of range for 2,200 head inside the fences up on that unit, so we know they run in that unit somewhere. Now, on the 50-50 basis, one-half of the 5,000 authorized would be about 2,500 that are run on the Big Piney unit, which is larger than the Sherman unit. If it is not, we are perfectly willing to go over it with the association and adjust it at any time. I am willing at any time when your association says that that is not the proper carrying capacity-I am perfectly willing to go out there with you and ride that range. In fact, I asked the association about a month ago to make a ride with me, but somehow we did not make connections. The president was not able to line up a committee to go with me.

The CHAIRMAN. Is this a timbered area-timbered with commercial timber?

Mr. FAVRE. Yes. There are open parts, however, through the area, naturally.

The CHAIRMAN. Both within and without?

Mr. FAVRE. Yes. There is not as much timber on the outside unit as there is on the inside, of course.

The CHAIRMAN. Do you have any difficulty with nonpermitted stock coming within the limits of the forest reserve?