REG. 54. Permits for canals, ditches, flumes, pipe lines, tunnels, dams, tanks, and reservoirs, not for mining or municipal purposes, nor granting an easement, are under the jurisdiction of the Secretary of Agriculture and should be applied for to the supervisor, as in the case of roads and trails.
REG. 55. If the project is small and of a private and personal character--such as a reservoir, pipe line, or ditch to supply a few farms, or a tank to collect water for stock--and the supervisor is certain that there are no complications of title, nor prior and conflicting rights, he may approve application. If any large or commercial enterprise is involved, or if there is any question of conflicting rights or of the jurisdiction of the United States over the land, or of conflict with Federal, State, or Territorial laws controlling use and appropriation of water, the supervisor must transmit the application to the Forester for approval, together with report and recommendation.
Permits granted under these regulations are only for the improvements necessary to store or conduct water and do not carry any right to the water itself, the appropriation of which is subject to Federal, State, or Territorial law.
Action upon applications to construct or change reservoirs, dams, tanks, canals, ditches, flumes, pipe lines, and similar improvements for purposes other than mining and municipal, is practically the same as prescribed for roads and trails. Preliminary statement by the applicant will be followed by examination and report upon all of the following points:
1. If the application is for a reservoir, dam, etc., the location and area; if for a ditch, flume, etc., the length and direction. This must be shown by map. In important cases, accurate map and survey must be furnished by applicant.
2. Title of land to be occupied or traversed. Show by map any patents or claims.
3. Character of forest reserve land involved; whether timbered, burned, or open.
4. Width of ditch, canal, etc., and width which should be allowed to be cleared. Quantity, kind, and value of forest-reserve timber to be cut in clearing.
5. Quantity, kind, and value of forest reserve timber, other than that necessarily cut in clearing, to be used in construction..
6. Should this timber be allowed free or through sale? (If free use or sale application is necessary, it should accompany report to avoid delay.
7. Disposition of refuse from cutting.
8. Source of water supply.
9. Applicant's right to use this water. This point should be fully discussed in the report, because, while a permit for improvements carries no water right, it is undesirable to grant a useless privilege or one which may unjustly impose upon others the necessity of protecting their rights. If the applicant has not an established water right, it should be clearly stated whether the stream involved is adequate at all seasons to supply all existing rightful claimants; whether only flood waters, which would otherwise be wasted, are to be used; whether in any way the desired privilege will be illegal or undesirable.
(p. 58)
10. Necessity for the desired improvement.
11. Possible injury to reserve or private interests; as, for example, through damage to roads or trails, hindering the passage of stock, or discharging water where it will be a nuisance.
12. Possible complications on account of private lands or prior rights of way.
These points should be fully discussed with the applicant and others concerned. An application upon the form prescribed , based upon the investigation and describing the terms of the privilege, will then be filled out in duplicate and signed by the applicant, as in road and trail cases, and the procedure thereafter will be as prescribed in such cases, except in so far as the authority of the supervisor to approve the application is defined by Reg. 55.
REG. 56. Permits for private railroads and tramroads and telegraph, telephone, and power lines may be granted only by the Forester. Applications may be made to the supervisor in the manner prescribed for road and trail applications. An accurate map of the proposed line must be supplied by the applicant.
After investigation a formal application upon the right of way privilege blank, together with report similar to that required for road or trail applications, will be transmitted to the Forester by the supervisor.
I. -- CRIMINAL ACTION.
REG. 57. Under authority given to the Secretary of Agriculture regarding forest reserves "to regulate their occupancy and use and to preserve the forests thereon from destruction," the following acts are hereby forbidden, and declared to constitute trespass punishable by fine and imprisonment: (See Appendix, p. 101.)
(a) Grazing upon or driving across a forest reserve any live stock without a permit, except as otherwise allowed by regulation.
(b) Placing any fence or inclosure upon a forest reserve without a permit, except upon land covered by a title or a valid claim.
(c) Making settlement or squatting upon land within a forest reserve.
(d) Building roads, trails, railways, or tramways, and constructing ditches, dams, canals, pipe lines, flumes, tunnels, or reservoirs without a permit, except upon land covered by a title or a valid claim.
(e) Erecting or conducting telephone, telegraph, or power lines, hotels, stores, sawmills, power plants, or other structures, or manufacturing or business enterprises, or carrying on any kind of work, except according to law and forest reserve regulations, unless performed on patented land or land held under valid claim.
(f) Willfully tearing down or defacing warning notices of the Forest Service.
(g) Willfully destroying or damaging any property belonging to or used by the United States for forest reserve purposes.
(h) Willfully setting on fire or causing to be set on fire any timber, brush, or grass within a forest reserve, or leaving or suffering fire to burn unattended near any timber or other inflammable material in a forest reserve.
The following trespasses are forbidden by specific acts of Congress and are punishable by fine and imprisonment:
1. Cutting, destroying, or removing timber or other forest products from land in a forest reserve without a permit, or without having a valid claim to the ground on which such timber or product grows, except the small quantities actually needed by transients while within forest reserves. (See Appendix, p. 117.)
2. Cutting, destroying, or removing more timber upon an unpatented claim within a forest reserve than is necessary for its proper working and actual development.
3. Cutting timber on one mining claim to be used in developing another, except when both belong to the same group and were located in good faith. (See Appendix, p. 129.)
All forest officers have power to arrest without warrant any person whom they discover in the act of violating the forest reserve laws and regulations, or to swear out a warrant before a United States commissioner of the district in which such violation has been committed and use it as the visible sign of the right to arrest: and also to arrest for any such violation on a warrant obtained from a United States commissioner by any competent person.
All forest officers are directed to be vigilant in discovering violations of forest reserve laws and regulations and diligent in arresting offenders, either on a warrant secured from a United States commissioner of the district or without such warrant when the offender is taken in the act of violating any forest reserve law or regulation.
(p. 61)
Any forest officer making an arrest must as soon as practicable take the offender before the nearest United States commissioner and thereafter stand ready to carry out any mandate of the commissioner relative to the custody of the prisoner. He will also at once inform the supervisor within whose jurisdiction the offense was committed. It shall be the duty of each supervisor promptly to inform the district attorney of any such arrest and to render him the fullest assistance in collecting evidence. Each supervisor will also keep the Forester fully informed of each arrest and of further steps in the prosecution.
When a forest officer makes an arrest he will be reimbursed for the necessary expense incident to such arrest. When such expenses are incurred by a forest ranger her will be reimbursed through the supervisor.
IN GENERAL.
The United States has all the civil rights and remedies for trespass possessed by private individuals.
If any forest officer discovers a trespass he will notify the trespasser, if possible, in the presence of a witness, to discontinue the same, taking care to note the hour, day, and place of notice. He will also report the facts immediately to the supervisor on the prescribed form, and when danger of removal or destruction is imminent will seize all material involved in the trespass and, if necessary, arrest the offender.
Supervisors will report all cases of trespass to the Forester, setting forth the damage done or threatened, including the actual expense incurred in investigating the trespass. If the offer of settlement is not accepted, and the damage seems sufficient to warrant a civil suit, the supervisor will be directed by the Forester to place the case in the hands of the United States district attorney. Thereafter the supervisor will do all in his power to collect evidence for and assist the district attorney in the prosecution of the suit. He will also promptly inform the Forester of each step in the case. Forest officers may administer oaths in securing testimony under this regulation.
An injunction may be obtained to restrain trespass on forest reserves.
Civil actions may also be brought to recover damages caused by any trespass or breach of contract. Damages recovered in such actions are in addition to and exclusive of criminal penalties.
The Secretary of Agriculture has no power to compromise criminal cases, and "a proposition of settlement submitted with the understanding that, if accepted, criminal proceedings for the trespass will be waived will be rejected."
The Secretary of Agriculture has power to settle with any trespasser for the actual civil damages of such trespass. The rule for measure of damages for timber cut without permit is as follows: When the trespass is willful, the value of the timber where found; when unintentional, the stumpage value only.
Forest officers will notify trespassers that they may make, upon the prescribed form, offers of settlement to accompany their reports, but no such offer will be considered unless the amount offered in settlements is remitted by postal or express money order or national bank draft on New York to the Special Fiscal Agent, Forest Service, Washington, D. C.
When trespass can be shown to be of a malicious nature, or due to such negligence as implies malice "or a reckless indifference to the rights of the Government," especially when a person trespasses after his attention has been called to the nature of the trespass, punitive damages may be recovered "notwithstanding the act constitutes an offense punishable under the criminal statutes."
When any structure is erected upon forest reserve land without a permit, it becomes the property of the United States immediately upon its construction.