unnecessary. To this Secretary Ballinger would not agree, but held that any such withdrawal was illegal and directed the restorations. In accordance with his instructions and not upon its own initiative the Reclamation Service recommended lists for restoration. Many restorations were made. After this matter was brought to your attention during April Secretary Ballinger stated to the officers of the Reclamation Service that he had been instructed by the President to withdraw all the power sites that were known or could be discovered. He had prepared a letter directing the Reclamation Service to detail engineers to make examinations. Finally, upon the suggestion of the Reclamation Service, the Secretary directed the Geological Survey to make the examinations and prepare the list, not because the survey had any more accurate information, but merely because it controlled a more available appropriation for field examinations. Immediately thereafter the lists for rewithdrawals were prepared by the Geological Survey in cooperation with the Reclamation Service and submitted, but without field examination. Exactly the same kind of information was used that was used for the original withdrawals, the chief difference being that all entered lands were eliminated by specific description rather than general exception. This difference in method of description accounts for the chief difference in total areas reported as withdrawn by Secretary Ballinger and by me. There is in fact no material difference when the proper deductions are made and this was explained to Secretary Ballinger, but seemingly not considered in the report to you. It is to be remarked that many thousand acres withdrawn by me remain unquestioned although withdrawn upon the identical information which was reported to you as inadequate. In brief, it is evident that those who advised you upon this matter avoided a frank statement of the facts. Secretary Ballinger restored the lands, claiming that the Secretary had no power to so withdraw lands and that I had acted illegally. Later, following your intervention, he did exactly what I did, and now his previous action is explained, not by a statement of the facts, but by the claim that his restorations were made merely to correct hasty or inaccurate work done under my administration. It is obvious from the facts I have stated that such a claim is wholly unwarranted. I sincerely hope more power sites than I withdrew will be found and withdrawn, and that no power sites were lost during the period between Secretary Ballinger's restorations and rewithdrawals; but I am at a loss to understand how the Interior Department can legally refuse to issue patents to entrymen who may have honestly made entries during that period. Second, as to the cooperative work under the Reclamation Service. The criticism of such work seems to be based upon the idea that there was no money in the Treasury available for use by the Secretary of the Interior at the time the cooperative agreements were made. At all times since construction began the available cash balance subject to use by the Secretary of the Interior has been more than $5,000,000 in excess of all liabilities, including all work authorized under the cooperative agreements. Furthermore, it is said that the certificate system will result in disaster. Just how or why is not explained, nor can it be except on the theory that a Secretary 1234 of the Interior will maladminister the reclamation funds by entering upon more work than he has funds to pay for, or fail to properly safeguard expenditures and receipts. Such action is just as possible under the ordinary contracts as under the cooperative construction contracts. The certificates are issued by the Water Users' Association, not the Government. While they represent the amount of work done or material furnished, they likewise represent an exactly similar amount to become due the Government for water furnished. Therefore, they are the evidences for completing a debit and credit transaction between the Government and the Water Users' Association with which the construction contract has been made. Instead of increasing the hazard of a reclamation project, this cooperative system absolutely guarantees the Government against loss of invested capital. The total amount of the cost of construction under a cooperative contract is included in contingent liabilities and is thus deducted from the total cash available for further construction. It can only become available when the water charges, equal to the cost of construction, are paid; such payment being made by the presentation of the certificates representing the cost of work and material. Reduced to its simplest terms, the cooperative agreement provides for a return to the Government of the cost of a given portion of a project in one or two years instead of ten. It makes it possible to turn over the capital invested in from one-tenth to one-fifth shorter time than under the usual method, and gives to energetic landowners increased opportunity to use water. The plan was approved by the officers of the Reclamation Service and the General Land Office, by the Assistant Attorney-General for the Interior Department, and finally by the Senate Committee on Irrigation. no I regret the necessity of writing you on this matter, but I am sure you wish to know the facts. Very sincerely, To the PRESIDENT. 1525 [Personal.] JAMES RUDOLPH GARFIELD. THE SECRETARY OF THE INTERIOR, SIR: In compliance with your direction, I herewith furnish you the facts requested respecting the matters covered by the letter of Hon. James R. Garfield, dated Cleveland, Ohio, November 6, 1909, addressed to you, and the letter of Hon. Gifford Pinchot, dated Washington, D. C., November 4, 1909, also addressed to you. First: As to Mr. Garfield's letter. 1526 It is apparent that there is an irreconcilable difference between his views of the law governing an administrative officer and those entertained by me, and nothing is gained by their repetition here. I am, however, convinced since reading these letters that the real animus against me lies in the fact that I have had to treat so many of my predecessor's acts as unsupported by law. In this particular I have taken no step which, in my judgment, was not the imperative duty of a conscientious official and required by my oath. Regarding the assertions of Mr. Garfield respecting my conduct on the subject of water-power withdrawals, he is correctly informed that I regarded his blanket withdrawals, under the guise of reclamation withdrawals, where, in fact, they were not for reclamation purposes, as illegal. In working it out I could find no other solution except by way of restoration and rewithdrawal in the manner in which it was handled, and that to have the matter intelligently presented to Congress it was necessary to make new withdrawals, with sufficient data to determine what they were withdrawn for. The only error I made in the whole affair was in not having the restorations and rewithdrawals made concurrently, which I would have done had I been as conversant with the facts then as I am now. The history, however, of this entire matter when fairly judged leaves no room for impugning my motives or of indulging in the opinion that I was coerced into the rewithdrawals. In all these particulars Mr. Garfield has been, by some officer or officers of the Reclamation Service, erroneously advised and an unfair and in some respects untruthful coloring given my relations to the same. In further confirmation of my statements in this respect I append for your examination copies of all the correspondence between the Reclamation Service and my office on this subject, as well as copies of the restorations recommended by Acting Director Davis and approved by me. (See Exhibit A hereto attached.) The act of June 17, 1902, known as the "reclamation act," in terms provides for the withdrawal of public lands for the following purposes only: "SEC. 3. That the Secretary of the Interior shall, before giving the public notice provided for in section 4 of this act, withdraw from public entry the lands required for any irrigation works contemplated under the provisions of this act, and shall restore to public entry any of the lands so withdrawn when, in his judgment, such lands are not required for the purposes of this act; and the Secretary of the Interior is hereby authorized, at or immediately prior to the time of beginning the surveys for any contemplated irrigation works, to withdraw from entry, except under the homestead laws, any public lands believed to be susceptible of irrigation from said works. * * Assuming Mr. Garfield's doctrine of the supervisory authority of the Secretary of the Interior to suspend the public-land laws by executive withdrawals to be sound, which I do not admit, proper administration would not warrant the use of the Reclamation Service for a purpose in no manner related to the functions of that bureau and not within this act, as there is an implied prohibition against withdrawing lands thereunder except for the purposes specified. Furthermore, any expenditure of reclamation moneys in investigation of these withdrawals must be conceded by all as totally unwarranted, a fact which has since been demonstrated by the inability to procure (and properly so) through the Reclamation Bureau information concerning the status of Carey Act irrigation projects in the various States, the reason advanced by the acting director being that the bureau was not authorized to apply its funds to such purposes. The fact that another bureau of this department had an appropriation 48412-VOL 1-10-2 for this purpose and had data under which intelligent withdrawals could be made was another adequate reason for transferring to the Geological Survey the full authority in the premises and cleaning up the matter so far as the Reclamation Bureau was concerned. When this subject was under consideration in the department, you will recall the fact that I took it up with you, and I am not aware of not giving you a full and "frank statement of facts" in this as in all other matters presented by me to you. I have heretofore reported to you the method adopted by the Geological Survey in obtaining the necessary facts to support its withdrawals. This method refutes the further statement made by Mr. Garfield to the effect that the Geological Survey acted upon the "same kind of information as was used by the Reclamation Service," for the Geological Survey drew its information from data which had been acquired from several years of field investigation of land and water resources and data which it is continually acquiring on this subject. Also, the maps and other data heretofore exhibited to you demonstrate the inaccuracy of Mr. Garfield's assertion that the difference in quantity between the area of land withdrawn by him and that withdrawn during my administration is due to the elimination from the latter of entered lands. (Copies of these tables and maps are attached, marked "Exhibit B.") 1527 The withdrawals made by Mr. Garfield were generally in pursuit of a theory that the Executive was vested with a power to do any and all things which in his judgment might be proper to be done in the absence of specific constitutional or legislative prohibition, and did not truthfully show what they were made for; whereas the withdrawals which have been made during my incumbency have shown what they were made for, and have been accompanied by the express declaration that they were for the purpose of enabling Congress to adopt legislation in regard thereto. I have not adopted any subterfuge in this respect. The question as to the issuance of patents to persons who have made entries of lands during the interval between restoration and withdrawal has been repeatedly passed upon by the courts. Such withdrawals, if legal, will prevent the effectiveness of inchoate rights. Aside from this, however, after three careful searches of the Land Office records, no such entries have been found, and the question is largely academic. As regards the issuance of cooperative certificates in work under reclamation projects, the Attorney-General has rendered two separate opinions declaring their issuance unauthorized by law, of which you are fully advised. The comptroller has likewise ruled on their invalidity. Mr. Garfield has, so far as I know, made no effort to learn the real facts relating to any of these matters or to justly estimate my motives in connection therewith, which I very much regret, in view of our long friendship and in view of the fact that upon my retirement from the General Land Office he expressed to me in writing his appreciation of my services to the Government, and at which time he evidently believed that my motives in all matters affecting the public service were of the highest character. I attribute the change of spirit to the influence of others who have poisoned his mind with untruths. I have consistently endeavored in my official acts to avoid anything that would appear to be a reflection upon my predecessor, except where legal and administrative action seemed necessary. As regards the letter of Mr. Pinchot above referred to, the illustrations which he sets forth as a demonstration of my unfriendly attitude toward the policy of conservation are easily refuted. In the matter of his claim that there has been a failure of cooperation on the part of the General Land Office with the Forest Service in the efforts of the latter to secure full examination of the validity of the Cunningham coal claims and that there had been a refusal to grant the Forest Service access to the records of said claims in the General Land Office, a full and complete statement has been heretofore presented you by Mr. Schwartz, Chief of Field Service. If any such failure of cooperation existed, no complaint thereof has ever been made by the Agricultural Department to the responsible head of the Interior Department. Manifestly, ordinary proprieties would have required some such direct communication and that an opportunity be given to investigate and act thereon before a charge would be justified that I sympathized therewith and was responsible therefor. The inference deducible from Mr. Pinchot's statement that the former Secretary considered the Cunningham claims fraudulent and recommended amendatory legislation is not justified by the facts. In the report of the former Secretary to Congress, of date April 20, 1908, recommending amendatory legislation, he in terms advised a confirmation of unlawful entries, as appeared in the proposed bill in the following language: "SEC. 9. That any persons, associations, or corporations who have obtained prior to the passage of this act claim or title to any coal lands of the United States by alleged unlawful means shall, upon proof to the satisfaction of the Secretary of the Interior that the full coal-land price of such land as classified by said Secretary under authority of law has been paid to the United States, may have their patents confirmed for not to exceed two thousand five hundred and sixty acres of such coal lands, if patents have issued, or if patents have not issued shall receive patents for not to exceed said area. * * This goes further than I ever suggested. It has never been contended, so far as I am aware, that any actual, as distinguished from constructive, fraud was practiced by the Cunningham entrymen, the criticism of said claims being that the locators had through an unauthorized association or community of interest undertaken to secure patents to lands in excess of the legal limitation. Hence, had the recommendation of the former Secretary been adopted their patents could not have been withheld. A reference to my annual report as Commissioner of the General Land Office of 1907 and the hearing before the Public Land Committee of the House, both of which have been reported by me to you, show the falsity of the statement that I was not in accord with legislation seeking to protect coal lands from monopolistic control. There is grave danger in the furor that is being raised respecting the protection of the rights of the public in the public domain of doing injustice to persons who 1528 have initiated rights under existing laws, in the matter of securing a calm and dispassionate disposition of their rights, such as should be accorded all persons dealing with the Government; and the attacks made on public officers in connection with the administration of these affairs tend to cause them to act under such restraint of judgment as to frequently be guilty of injustice to the individuals dealt with, where there is any possibility of adverse criticism. The extreme solicitude for the general public is thereby often unjustly visited on the innocent entryman. Mr. Pinchot's statement that a special decision of the present First Assistant Secretary, rendered on May 19, 1909, would have validated the Cunningham claims without regard to whether they were located in good faith or not is not true, and the lack of foundation therefor could have been readily ascertained by inquiry directed to the Attorney-General. Primarily, that decision had absolutely no reference whatever to the Cunningham claims. The parties interested therein had announced their unwillingness and absolute refusal to proceed under the act of 1998, and it was a construction of the latter act only which was attempted in the Pierce opinion, afterwards reviewed by the Attorney-General. The latter does not overrule, but, on the contrary, is in entire accord with the opinion of the First Assistant Secretary. In the matter of my attitude toward withdrawals for so-called administrative sites, the facts are, that, responsive to a request for such withdrawal of lands outside of the Pike National Forest, in the State of Colorado, I called attention to the act of Congress providing "that no forest shall be created, nor any additions made to one heretofore created, within the limits of the States of Oregon, Washington, Idaho, Montana, Colorado, or Wyoming, except by act of Congress," and determined that "a withdrawal as suggested would be, in effect, an extension of the forest reservation * * * consequently, in the face of the legislative prohibition." and, Simultaneously, responsive to a request for withdrawal of an area 2 miles square (1,280 acres) within the Chelan Forest, Washington, attention was called to the legis lative declaration that nothing in the act authorizing the setting apart of forest reservations should "prohibit any person from * * prospecting, locating, and developing the mineral resources" of the lands included therein, and stated that a withdrawal as requested would have the effect of suspending the operation of the mineralland laws of the lands affected thereby, and was therefore unauthorized. It was further suggested that if the lands proposed to be withdrawn were nonmineral in character, the jurisdiction of the Department of Agriculture was already complete. These requests for withdrawals simply stated that the lands were desired for “administrative sites," giving no declaration of necessity therefor. It was known to me, and admitted by forest officers, that some of the former withdrawals for administrative sites had been made for the sole purpose of controlling water-power sites and without any intention of using them for administrative purposes, and Secretary Wilson announced at a Cabinet meeting that further withdrawals for such purposes would not be requested. My action in reference to the two requests for withdrawals of administrative sites just referred to was based upon opinions transmitted to me by Assistant Attorney-General Lawler of the Interior Department; upon question being raised as to the soundness of said opinion the entire matter was referred to the AttorneyGeneral, who will no doubt in due time give us the benefit of his views with reference thereto. With reference to my letter to the Secretary of Agriculture that requests for withdrawals be accompanied by a showing of the necessity for the devotion of the lands to public use being a reflection upon the Secretary of Agriculture, it need only be stated that the relations between that official and myself are now, as they have always been, of the most cordial nature. I am satisfied that if he entertained any feeling that my communication had subjected him to an "indignity" he would have very properly called the same to my attention, and would have received a very prompt and complete disavowal of any such intention; that he has not done so is to me a complete demonstration that any such idea was as foreign to his own conception as it was to mine. As to the propriety of requiring such a showing, I believed that the same would be beneficial to both departments, there having been withdrawn under the mere designation "administrative sites" over 600,000 acres of the public lands, much of which is outside of forest reserves, and within those States where extension of reserves is prohibited by law. This has aroused serious criticism and charges to the effect that the practice of making such withdrawals was being indulged in for the purpose of circumventing the legislative prohibition. Manifestly, if a record were made showing the necessity for the use of the land specially withdrawn. an effective answer would plainly appear to such criticism and there would be less doubt as to the legal justification for the withdrawals. In the matter of the withdrawals for water-power purposes made shortly prior to the 4th of March last and the restoration of the lands covered thereby shortly after 1529 that date, the facts involved have been fully discussed above, responsive to a communication from Mr. Garfield, and also in my answer to you of the Glavis charges. That the policy of restoration has not been and was not reversed is selfevident and has been amply demonstrated. Mr. Pinchot's statement that the so-called "Indian-Forest cooperative agreement has never been passed upon by the comptroller is erroneous. On September 3, 1908, responsive to inquiry from the Interior Department, the comptroller wrote the following opinion: "I have the honor to acknowledge the receipt of your letter of August 26, 1908, in which you request my decision of a question therein presented, as follows: "Under a cooperative agreement existing between the Bureau of Forestry and the Office of Indian Affairs, affecting the cutting of timber and other matters pertaining to forestry on various Indian reservations, the expenses incurred in the prosecution of such work by the said bureau are paid by the Indian Office from funds belonging to the Indian tribes for whose benefit the work is performed. "It is now deemed necessary by the Forester and the Commissioner of Indian Affairs to detail a clerk from the Forestry Bureau for duty in the Indian Office, in order that the work there may have the supervision of one who is thoroughly familiar with its technical details, his salary to be paid by a disbursing officer of this department from funds belonging to the Indians, and apportioned as far as possible among the different tribes in accordance with the amount of work performed for each. "Before proceeding as indicated, I should like to have from you a decision as to whether or not there is any legal obstacle in the way of such an arrangement.' "The detail of an employee from one department to another, with or without an agreement between the heads of the departments concerned, to perform duties which are not connected with the department from which detailed and the payment of his salary from appropriations for or moneys under the control of the department of which detailed is unauthorized (14 Comp. Dec., 294), unless express authority by statute is granted therefor, and I am not aware of any statute that either expressly or impliedly gives general authority to make such details between the Agricultural and Interior departments. "For the above reason your question is answered that there is legal objection to the proposed arrangement of which you speak.' * * * * * * The agreement referred to therein (which is the same agreement referred to by Forester Pinchot) provides, among other things, that "the Forest Service will undertake the protection of all forests on Indian reservations the salaries and expenses of all men actually employed to carry out this agreement shall be borne by the Indian Office all men so employed * shall constitute a part of the force of the Forest Service responsible directly and only thereto work in the woods * * * shall be planned, initiated, and conducted wholly by officers of the Forest Service." * * * * * * * The agreement therefore manifestly provided for the detail of employees of the Department of Agriculture to perform duties of the Indian Office not connected with the Forestry Bureau and the payment of the salaries and expenses of such employees out of moneys of the Interior Department, a practice to which the comptroller said there was legal objection and which he held to be unauthorized. |