V

In arriving at the conclusions expressed in this opinion, I have had available not only the views of your General Counsel, but also those of lumbering interests which might be affected by any change in policy. I have found these most helpful in my consideration of the issues presented to me. I am, however, impressed by the extent to which the statute tends to be viewed in absolute terms not borne out by either its language or legislative history. There is a tendency to claim on the one hand an almost unqualified statutory right of any owner of property located within the boundaries of national forests to build roads across the forest reserve, despite the narrow language of the statute, and to argue that if this were not the case owners would be without any rights whatsoever; that is, that you could arbitrarily deny access or condition it on unreasonable requirements. As I have emphasized, I do not understand this to be the law.

The language of the act, and its legislative history indicate a congressional desire to permit actual settlers and others who own property within the boundaries of national forests to obtain access to, and use their property, subject to the purposes to be attained by the statute, i.e., generally, the regulation of the occupancy and use of the reservations, and the preservation of the forests thereon from destruction. As the Supreme Court pointed out in United States v. Grimaud, 220 U.S. 506, 516-517, it is your function to determine what private use of the national forests in any given case is consistent with the purposes sought to be attained by the statute. The imposition of harsh and onerous requirements not related to the benefit received or to your general responsibility to preserve and manage the national forests, might well constitute an abuse of discretion.

The essence of the second question presented to me is not whether you have a mandatory duty to impose a reciprocity requirement on applicants who seek to cross national forests or to construct wagon roads therein, but whether you possess any discretionary authority to do so. My conclusion that you

35 Light v. United States, 220 U.S. 523, 536, indicates that the act of June 4, 1897, does not constitute the full exercise of the power Congress has under Article IV, section 3 of the Constitution to prohibit absolutely the use of national forests by private persons.

generally possess this discretionary authority, of course, does not preclude the possibility that in the circumstances of particular cases, which are not before me, the area of your authority may be significantly narrowed by such circumstances. In any event, the question whether you should exercise whatever authority you possess is a matter for you to determine. Problems of both policy and law may affect your exercise of discretion.

The memoranda submitted by the lumber companies take the position that where a person who owns property within the boundaries of a national forest asks for the right to cross that forest or to construct a road in it to reach his property, he is actually asserting an easement by necessity, and consequently entitled to the permit as a matter of private property right. The question whether an easement by necessity lies against the Government is extremely complex and controversial; 36 however, it need not be decided here. It is my view that these easements do not exist over public lands. Moreover, if Government land could be servient property, it also would be dominant property where the situation is reversed, and you could, in the exercise of your discretion, refuse to respect an applicant's easement so long as he failed to honor his reciprocal obligation to the United States.

It is also apparent that the administration of a policy requiring reciprocity may be complicated where a private person seeks permission to build a relatively short wagon road over Government lands, and the Government seeks to build a much longer one over his property, or to use his extensive network of roads, or to exercise rights which are in other respects substantially greater than what it gives.

Similar problems of possible unfairness and lack of equality may arise from the circumstance that, although you require the grant to the United States of at least long-term easement, you can issue only a temporary permit. It may,

88 See Bydlon v. United States, 175 F. Supp. 891, 898 (1959); Rombauer, Easements by Way of Necessity Across Federal Lands, 35 Washington Law Review 105; cf. United States v. Rindge, 208 Fed. 611-619 (S.D. Calif. 1913); Pearne v. Coal Creek Min. & Manuf'g Co., 90 Tenn. 619, 18 S.W. 402 (1891); State v. Black Bros., 116 Tex. 615, 626-629, 297 S.W. 213. 217-218 (1927); Guess v. Azar, 57 So. 2d 443 (Fla. 1952); Wilcoxon v. McGhee, 12 Ill. 381, 385-386 (1851); Leonard A. Jones, Easements, secs. 298, 301; Simonton, Ways by Necessity, 25 Columbia Law Rev. 571, 575.

therefore, be desirable to devise some administrative machinery pursuant to which an application to your department for the construction of a road across national forest lands can be referred by you to the Department of the Interior for the grant of an easement without requiring the filing of multiple applications. While I believe such a machinery can be established under 16 U.S.C. 525 and 472, whether you should attempt to do so is again a matter confided to your discretion. Sincerely,

ROBERT F. KENNEDY.

CONFIDENTIALITY OF “VOLUNTARY” REPORTS UNDER THE CENSUS LAWS

The confidentiality provisions of 13 U.S.C. 9(a) apply to the "voluntary" replies filed in response to surveys taken more frequently than annually under the authority of 13 U.S.C. 181.

THE SECRETARY OF COMMERCE.

FEBRUARY 21, 1962.

MY DEAR MR. SECRETARY: This is in reply to the Under Secretary's request for my opinion as to whether the confidentiality provisions of 13 U.S.C. 9(a) apply to answers made in reply to surveys taken more frequently than annually under the authority conferred by 13 U.S.C. 181.

The census legislation distinguishes between a "census" constituting a complete statistical coverage of a particular subject and conducted at regular intervals fixed by statute, and a "survey" covering only a portion of a particular subject matter and conducted at such intervals as may appear necessary to bring the statistical information obtained through a census up to date.1 Surveys taken more frequently than annually and the reports submitted in response to them are called "voluntary" because 13 U.S.C. 225 (c) exempts them from 13 U.S.C. 221, 222, 223, and 224. The latter sections impose criminal penalties for failure to submit answers to the census authorities and for submitting false answers. The question has arisen whether "voluntary" reports are not only exempt from these criminal provisions, but are in turn deprived of the protection of 13 U.S.C. 9(a), which

1

1 See Collection and Publication of Statistical Information by the Bureau of the Census, Hearings before a Subcommittee of the Committee on Post Office and Civil Service, House of Representatives, 80th Cong., 1st sess. on H.R. 1821 (hereafter referred to as House Hearings), pp. 38, 44-45, 51, 54.