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Mexico (ten months being the time estimated for its construction).""

The history of the legislation in question shows that in providing for a floating instead of a stationary dry dock at Algiers, La., Congress was actuated by considerations other than that a floating dock might perhaps be transferred to some other place if deemed advisable. That possibility does not appear to have been even suggested. The selection of Algiers, La., as the most suitable place for the location of a dry dock for the benefit of the Gulf waters had been determined upon by Congress after careful consideration and having due regard to both "the commercial and naval interests" to be subserved. The change from a stationary to a floating dock was made not because its movable quality might enable it to be transferred from one place to another, but because that quality would counteract the effect of any changes in the level of the water; because being located in fresh water the expense of maintenance would be small; because of the great depth of water within mooring distance of the wharf; and because. of the rapidity with which a floating dock could be constructed. It is to be observed that a floating dry dock, although it may be transferred from one place to another, is not constructed primarily for that purpose. Because of its great size and depth and absence of self-motive power, the transfer of such a dock would, doubtless, be both difficult and expensive. Further expense would also be entailed by the construction of the necessary wharf and moorings, for which the act in question also provides. Besides, if the dock at Algiers were transferred to Guantanamo, Cuba, it would, I assume, be located in salt water, whereas it appears to have been contemplated that as the dock for Algiers would be located in fresh water, the expense of its maintenance would be reduced. Furthermore, it will be observed from the report of the Secretary of the Navy, above quoted, that in locating dry docks and repair shops it was desirable to place them as far as possible "at great commercial and industrial centers, not only because workmen and material can be obtained more readily and more reasonably at such points, but also because such

points require and will have, from their importance to the country, a strong land defense; and, as the docks also require a strong defense, one set of fortifications will cover both civil and military property."

It is clear that Congress had these considerations in mind when it directed the floating dry dock in question "to be located at the naval reservation at Algiers, Louisiana," and that the language used was directory and not merely descriptive. This being so, I do not think the power of the President as Commander-in-Chief of the Army and Navy would authorize him to disregard the mandate of Congress as to where the structure should be located, at least in the absence of an emergency making such action imperative for the protection of the interests of the Government, such as might arise in time of war or public danger. Your letter, of course, suggests no intention to disregard the wishes of Congress in this respect.

I have therefore to advise you that in my opinion the President is not empowered, under present conditions, to remove the dock from Algiers, La., to Guantanamo, Cuba. Respectfully,

GEORGE W. WICKERSHAM.

The SECRETARY OF THE NAVY.

FOREST RESERVES-LANDS WITHDRAWN FROM ENTRY.

The principle announced in the opinion of Acting Attorney General Fowler (28 Op. 424), that lands withdrawn from entry with a view to their inclusion in a national forest constitute a "temporary forest reserve" within the meaning of the act of June 11, 1906 (34 Stat. 233), concurred in.

DEPARTMENT OF JUSTICE,

December 10, 1910.

SIR: I have given careful consideration to the several suggestions made in your letter of October 6, 1910 (B 13521 OL), wherein you request a reconsideration of the opinion of the Acting Attorney General rendered to you September 20, 1910. The opinion holds that lands withdrawn from entry with a view to their inclusion in a national forest constitute a "temporary forest reserve"

within the meaning of the act of June 11, 1906 (34 Stat. 233). Your suggestions, briefly summarized, are:

First. That the opinion ignores a class of reservations created by proclamation of the President which more nearly fit the term "temporary forest reserves" than do the lands that have merely been withdrawn from entry, viz, forest reserves "comprehending lands devoid of timber and intended to be (and which were) used for experimental purposes, in the planting of trees, etc."

Second. That the opinion affects the jurisdiction of your department, as heretofore understood and exercised, over such withdrawn lands and therein may operate seriously upon private interests which rest upon the validity of your acts; and

Third. That to extend the right of entry by metes and bounds to lands merely withdrawn, and which may likely be restored to the public domain, offends the general policy of allowing entries of public lands only in rectangular tracts and tends to inconvenience and confusion.

The first suggestion, if well grounded, would be strongly persuasive, but it is hardly borne out by the proclamations themselves. A careful examination of all proclamations creating or affecting forest reservations, from the first of them down to a time long subsequent to the act in question, reveals no instance in which the purpose of the reservation was expressed to be temporary, or may safely be inferred to have been so from the recitals, description of subject-matter, or general context of the proclamation. In this respect the proclamations are so substantially similar that one can not logically be distinguished from another. The proclamation instanced by you (35 Stat. 2120) recites that the lands restored were no longer required "for experimental forest purposes." The original proclamation (34 Stat. 3178) which created the reservation thus abolished is couched in the terms common to scores of others and affords no indication that its purpose differed from the purpose actuating the creation of forest reservations in general. The recitals are, first, a recital of the authority of the President to set aside forest reserves under section 24 of the act of March 3, 1891 (26 Stat. 1103), and, second, the following:

"And whereas, the public lands in the Territory of New Mexico, within the limits hereinafter described, are in part covered with timber, and it appears that the public good would be promoted by setting apart and reserving said lands as a public reservation."

I take the explanatory recital of the later proclamation to mean that the land was originally set apart for the conduct of forestry experiments of a more or less general character, or with a view to the forestation or reforestation of that particular tract. From neither of these objects. may it be inferred that the subsequent restoration was. part of the original plan.

Of the other suggestions contained in your letter, that which concerns the respective jurisdictions of your department and the Department of Agriculture and the protection of private interests is, of course, important; but I do not believe that the opinion logically points to the results which you apprehend. Because lands merely withdrawn are regarded as temporary forest reserves for the special and limited purpose of the act of June 11, 1906, it by no means follows that they must be regarded as forest reserves for all purposes. The very existence of the distinction between the temporary and the permanent reserves—the distinction upon which depends the attribution of any meaning to the words "temporary forest reserves" in the act-rests in the fact that the former have not yet attained the status of lands definitely set apart to be used and administered as national forests. They may never reach that status. The jurisdiction conferred upon the Secretary of Agriculture by the act of February 1, 1905 (33 Stat. 628), cited by you, is essentially a jurisdiction to care for, supervise, and manage the national forests as distinct instrumentalities of the Government-as "going concerns"—and to execute certain laws relating to them. is directed by that act to "execute, or cause to be executed, all laws affecting public lands heretofore or hereafter reserved under the provisions of section 24 of the act approved March 3, 1891, and acts supplemental to and amendatory thereof, after such lands have been so reserved," excepting certain classes of laws left for execution by the Interior Department. The language here used distinctly

He

imports that the process of reserving a given area of land shall have been completed before the Secretary's functions shall come into play.

The laws which the Secretary is to execute are manifestly the laws which declare the general policy respecting forest reservations and govern their administration and use as such apart from the general mass of public lands. The object of the "temporary" reservation is to retain the lands withdrawn in statu quo until the President may inquire further whether they are lands suitable to be brought within the operation of those laws. Application of those laws before the inquiry has been ended and acted upon would not only defeat in part the presidential purpose, but would be inconsistent with the laws themselves, since they presuppose as a condition to their application. to a given area of land that a definite and final decision of the President to set apart and reserve it for forestry purposes shall have been made and proclaimed. The duty and responsibility of creating forest reserves rests with the President. The preliminary withdrawal of lands through your action is but a step in the process of creating them. The withdrawn areas can not be said to come under the "supervision" of the Secretary of Agriculture or his department within the meaning of the act of February 15, 1901 (31 Stat. 790), until they shall have been definitely devoted by the President to the forest policy. The power which brings about such withdrawals may, of course, revoke them.

The foregoing observations appear to cover the various objections made in your letter save that which is based upon the inconvenience of allowing entries to be made otherwise than in accordance with the public surveys. This is an objection the ground for which may be in large measure removed in practice by cooperation between the two departments; but whether this be so or not it is an objection which goes rather to the wisdom of the act of June 11, 1906, than to the soundness of the Acting Attorney General's opinion.

Very respectfully,

GEORGE W. WICKERSHAM.

The SECRETARY OF THE INTERIOR.

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