Appendix — Chalk v. United States

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APPENDIX.

State Laws Involved.

The lands in the Pisgah National Game Preserve were

acquired by the United States pursuant to State consent

given by Chapter 17, Public Laws of North Carolina of

1901, page 157, which is as follows:

‘¢Aw Act To Give ConsENT OF THE STATE OF NortH Caro-

LINA TO THE ACQUISITION BY THE UNiTED States or Sucu

Lanps as May Be NEEDED FoR THE ESTABLISHMENT OF A

Nationa Forest REsERVE IN Sarp State.

‘Whereas, it is proposed that the Federal Government

purchase lands in the high mountain regions of Western

North Carolina and adjacent States, for the purpose of es-

tablishing there a National Forest Reserve which will per-

petuate these forests and forever preserve the headwaters

of many important streams, and which will thus prove of

great and permanent benefit to the people of this State; and

‘“Whereas, a bill has been introduced in the Federal

Congress providing for the purchase of such lands for said

purpose; therefore,

‘*THe GENERAL ASSEMBLY OF NortH Carouina vo Enact:

‘*Section 1. That the consent of the General Assembly

of North Carolina be and is hereby given to the acquisition

by the United States by purchase, or by condemnation with

adequate compensation, except as hereinafter provided, of

such lands in Western North Carolina as in the opinion of

the Federal Government may be needed for the establish-

ment of such a national forest reserve in that region: Pro-

vided, that the State of North Carolina shall retain a con-

current jurisdiction with the United States in and over such

lands so far that civil process in all cases, and such criminal

process as may issue under the authority of the State of

North Carolina against any person charged with the com-

GAA ARERR AIG MEONEET PH 5 © LL LONG PIS POE BOE WHINE CTE MPA _—

mission of any crime without or within said jurisdiction,

may be executed thereon in like manner as if this act had

not been passed.

“Section 2. That power is hereby conferred upon Con-

gress to pass such laws as it may deem necessary to the ac-

quisition as hereinbefore provided, for incorporation in said

national forest reserve, such forest covered lands lying in

Western North Carolina as in the opinion of the Federal

Government may be needed for this purpose: Provided, that

as much as two hundred acres of any tract of land occupied

as a home by bona fide residents in this State at the date of

the ratification of this act shall be exempt from the provi-

sions of this section.

‘Section 3. Power is hereby conferred upon Congress to

pass such laws and to make or provide for the making of

such rules and regulations, of both civil and criminal nature

and provide punishment therefor, as in its judgment may be

necessary for the management, control, and protection of

such lands as may be from time to time acquired by the

United States under the provisions of this act.

‘Section 4. That this act shall be in force from and after

its ratification.

‘In the General Assembly read three times and ratified

this the 18th day of January, A. D., 1901.’’

In 1915 the General Assembly of North Carolina, by

Chapter 205, North Carolina Public Laws of 1915, page 284,

consented to the making of Federal rules and regulations

in respect to game on Western North Carolina lands ac-

quired under the Weeks Act, which is as follows:

“An Act to Give THE ConsENT OF THE StTaTE oF NortH

CaROLINA TO THE MAKING BY THE CONGRESS OF THE UNITED

States, on Unver Irs Autuority, or ALL Sucn Rues anp

REGULATIONS AS IN THE OPINION OF THE FEDERAL GoveERN-

MENT May Be NEEDFUIvIN Respect To GAME ANIMALS, GAME

AnD Non-Game Birps, anp Fish on LANDS, AND IN OR ON THE

7 mam pease be cath uatancictne iii eS a EN ROD as BES LEANN

NBT ETRE GEE LEN REA Re TLS 1 Sas a

Waters THEREON, ACQUIRED OR TO BE ACQUIRED BY THE F gp.

ERAL GOVERNMENT IN THE WESTERN Part or Nortu Carouina

FOR THE CONSERVATION OF THE NAVIGABILITY OF NAVIGABLE

Rivers.

‘“Whereas, the Government of the United States, with the

consent of the General Assembly of the State of North

Carolina, has acquired and will acquire areas of forested

land in the western part of said State for the purpose of

conserving the navigability of navigable streams, and said

lands and waters thereon are and will be stocked, naturally

and artificially, with game animals, game and non-game

birds, and fish; and

‘‘Whereas, in order adequately to enjoy and protect the

occupancy and use of said areas, it is important that the

United States be fully authorized to make all needful rules

and regulations in respect to such animals, birds, and fish:

Therefore,

‘*THe GENERAL ASSEMBLY OF NortH Caro.tina Do Enact:

‘‘Section 1. That the consent of the General Assembly of

North Carolina be, and hereby is, given to the making by

the Congress of the United States, or under its authority,

of all such rules and regulations as the Federal Govern-

ment shall determine to be needful in respect to game ani-

mals, game and non-game birds, and fish, on such lands in

the western part of North Carolina as shall have been, or

may hereafter be, purchased by the United States under

the terms of the Act of Congress of March first, one thou-

sand nine hundred and eleven, entitled ‘An act to enable

any State to cooperate with any other State or States, or

with the United States, for the protection of the watersheds

of navigable streams, and to appoint a commission for the

acquisition of lands for the purposes of conserving the

navigability of navigable rivers’ (Thirty-sixth United

States Statutes at Large, page nine hundred and sixty-one),

and acts of Congress supplementary thereto and amenda-

tory thereof, and in or on the waters thereon.

‘In the General Assembly read three times and ratified

this 9th day of March, 1915.’’

STR NPE YO T ELI MIRTLE EE PEIN BE EEL ET TR GCA SMES —

In 1933, by Section 2 of Chapter 537, North Carolina Pub-

lic Laws of 1933, Chapter 537, page 886, the General Assem-

bly declared the foregoing Act of 1915 should not be con-

strued to deprive the State of its vested right to collect from

hunters licenses from hunters on Federal lands in Western

North Carolina, said Section being as follows:

“Section 2. That no wording in Section two thousand

and ninety-nine, Consolidated Statutes, nineteen nineteen,

or any other North Carolina Statute or law, or special act,

shall be construed to abrogate the vested rights of the State

of North Carolina to collect fees for license for hunting and

fishing on any government owned land or in any govern-

ment owned stream in North Carolina including the license

for County, State or non-resident hunters or fishermen; or

upon any lands or in any streams hereafter acquired by the

Federal Government within the boundaries of the State of

North Carolina. The lands and streams within the bound-

aries of the Great Smoky Mountains Natural Park to be

excepted from this act.’’

“The North Carolina Game Law of 1935,’’ Chapter 486,

Public Laws of North Carolina, Session of 1935, page 853,

et seq., amended, codified, and reenacted the existing gen-

eral game laws of the State. Its pertinent provisions are

summarized as follows:

(a) Section 2, page 853, defines the unlawful ‘“‘taking’’ of

“game animals’? to ‘‘include pursuing, shooting, hunt-

ing, killing, capturing, trapping, snaring, and netting’’ of

game animals in the open season, game animals being

defined by the Section to include deer.

(b) Section 12, page 860, prescribes stated amounts to

be paid for ‘‘hunting licenses,’’ forbids the taking of game

without a license, and provides that the license shall au-

thorize the taking of game only ‘‘during the periods of the

year when it shall be lawful.’’

for the taking of male deer shall be from October 1 to

January 1 of each year, subject to changes by the Board

of Conservation and Development. In the years here in

question no changes in the open season for deer were made

by the Board. The law provides no open season for female

deer. The Act makes it unlawful to take deer in the closed

season.

(d) Section 4(5) authorizes the State game authorities

to make cooperative game agreements with the Federal

authorities for the development and management of game,

(e) Section 4(c) authorizes the State game authorities

to issue permits to kill game animals ‘‘which may become

seriously injurious to agriculture or other interests in any

particular community.”’

(f) Section 19 makes unlawful the possession or trans-

portation of dead game animals during the closed season.

(g) Section 22 makes it unlawful for any common ear-

rier to transport or receive any game animal for shipment

unless the shipper is a licensed hunter, and authorizes

a licensed hunter during open season to transport in or

out of the State game animals lawfully taken and pos-

sessed.

(h) Section 25 provides that violation of any provisions

of the law shall be a misdemeanor, punishable as therein

provided.

(i) Under the broad powers bestowed by the Act, and

as it has been officially interpreted and applied, the State

game officials have power to authorize officials of the

United States Forest Service to take, trap, possess, ship,

or transport deer in or out of season.

In 1939 the General Assembly of North Carolina enacted

that its law of 1915, supra, now North Carolina Consoli-

dated Statutes, Section 2099, should not be construed as

conveying the State’s ownership of game on Federal lands

in the State acquired under the Weeks Act or to permit

hunting thereon except in accordance with the State Game

Law of 1935, which reenacted prior laws, it being as follows:

“An Act to AMEND Consotipatep Statutes Two THov-

sAND AND NINETY-NINE, VoLUME OnzE, One THovusanp NINE

HuNDRED AND NINETEEN, RELATIVE TO THE REGULATION OF

faME ANIMALS, GamME anp Non-Game Birvs anp FisH on

JAME PRESERVES IN Nortru CARoLina.

“THE GENERAL AssemBLy or Nortu Carona Do Enact:

“Section 1. That Consolidated Statutes two thousand and

linety-nine, Volume one, one thousand nine hundred and

Nineteen (The Act of 1915, supra), be amended by adding

inew paragraph at the end thereof to read as follows:

‘Nothing in this Act shall be construed as conveying the

wnership of wild life from the State of North Carolina

r permit the trapping, hunting or transportation of any

ame animals, game or non-game birds and fish, by any

erson, firm, or corporation, including any agency, depart-

nent or instrumentality of the United States Government

r agents thereof, on the lands in North Carolina, as shall

ave been or may hereafter be purchased by the United

tates under the terms of any Act of Congress, except in

ecordance with the provisions of Chapter four hundred

nd eighty-six, Public Laws of one thousand nine hundred

nd thirty-five.’

“Section 2. Any person, firm or corporation, including

mployees or agents of any department or instrumentality

f the United States Government, violating the provisions

f this Act shall be guilty of a misdemeanor and shall be

unished in the discretion of the court.

“Section 3. All laws and clauses of laws in conflict with

uis Act are hereby repealed.

“Section 4. This Act shall be in full force and effect from

nd after its ratification.

“In the General Assembly read three times and ratified,

is the 3rd day of March, 1939.”’

eT ant eel ee A eee ED FAM MANA IN AS ETNA aS SN LS CA TN eA SRO MTU BAIN AI ae

Federal Laws Involved.

The lands in question were acquired by the United States

under the Weeks Act of March 1, 1911, Chapter 186, 36

Stat. 961, Sections 6, 7, 11, and 12, 36 Stat. 961, 962, 963,

16 U. S. C., Sections 515, 516, 521, and 480, the pertinent

provisions of which are as follows:

‘Chapter 186.—An Act To Enable any State to cooperate

with any other State or States, or with the United States,

for the protection of the watersheds of navigable streams,

and to appoint a commission for the acquisition of lands

for the purpose of conserving the navigability of navigable

rivers.

* * * * * . *

‘Section 6. That the Secretary of Agriculture is hereby

authorized and directed to examine, locate, and recommend

for purchase such lands as in his Judgment may be neces-

sary to the regulation of the flow of navigable streams, and

to report to the National Forest Reservation Commission

the results of such examinations ; Provided, That before any

lands are purchased by the National Forest Reservation

Commission said lands shall be examined by the Geological

Survey and a report made to the Secretary of Agriculture,

showing that the control of such lands will promote or

protect the navigation of streams on whose watersheds

they lie.

‘*Section 7. That the Seeretary of Agriculture is hereby

authorized to purchase in the name of the United States,

such lands as have been approved for purchase by the

National Forest Reservation Commission at the price or

prices fixed by said commission; Provided, That no deed

or other instrument of conveyance shall be accepted or

approved by the Secretary of Agriculture under this Act

until the legislature of the State in which the land lies

shall have consented to the acquisition of such land by the

United States for the purpose of preserving the navigabil-

itv of navigable streams.

— ~

“Section 11. That, subject to the provisions of the last

preceding section, the lands acquired under this Act shall

he permanently reserved, held, and administered as national

forest lands under the provisions of section twenty-four of

the Act approved March third, eighteen hundred and ninety-

one (volume twenty-six, Statutes at Large, page eleven

hundred and three), and ‘Acts supplemental to and amenda-

tory thereof. And the Secretary of Agriculture may from

time to time divide the lands aequired under this Act into

such specific national forests and so designate the same as

he may deem best for administrative purposes.

“Section 12. That the jurisdiction, both civil and erimi-

nal, over persons upon the lands acquired under this Act

shall not be affected or changed by their permanent reserva-

tion and administration as national forest lands, except

so far as the punishment of offenses against the United

States is concerned, the intent and meaning of this section

being that the State wherein such land is situated shall not,

by reason of such reservation and administration, lose its

jurisdiction nor the inhabitants thereof their rights and

privileges as citizens or be absolved from their duties as

citizens of the State.’’

Since 1897 Congress has pil agp enacted and declared

that the States should retain their jurisdiction over the

game on the lands within the National Forests in their

borders and that Federal Forest Officials should aid in the

enforcement of State game laws therein, those enactments

being as follows:

(a) The Act of June 4, 1897, 30 Stat., pp. 11 to 62, con-

tains at pages 34 to 36 thereof the following provi sions:

‘fAll public lands heretofore designated and reserved by

the President of the United States under the provisions of

the Act approved March third, eighteen hundred and ninety-

one, * * * and all public lands that may hereafter be

set aside and reserved as publie forest reserves under said

Act, shall be as far as practicable controlled and admin-

istered i in accordance with the following provisions:

‘The Secretary of the Interior shall make provisions for

the protection against destruction by fire and depredations

upon the public forests and forest reservations which may

have been set aside or which may be hereafter set aside

under the said Act of March third, eighteen hundred and

ninety-one, and which may be continued ; and he may make

such rules and regulations and establish such service as

will insure the objects of such reservations, namely, to

regulate their occupancy and use and to preserve the forests

thereon from destruction; and any violation of the provi-

sion of this act or of such rules and regulations shall be

punished as is provided for in the Act of June fourth,

eighteen hundred and eighty-eight, ae

‘‘The jurisdiction, both civil and criminal, over persons

within such reservations shall not be affected or changed

by reason of the existence of such reservations, except so

far as the punishment of offenses against the United States

therein is concerned; the intent and meaning of this pro-

vision being that the State wherein any such reservation

is situated shall not, by reason of the establishment thereof,

lose its jurisdiction, nor the inhabitants thereof their rights

and privileges as citizens, or be absolved from their duties

as citizens of the State.’’

(b) The Act of March 3, 1899, 30 Stat., Ch. 423, p. 1074,

at 1095, now U. S. Code, Title 16, Sec. 553, provides:

‘“‘That forest agents, superintendents, supervisors, and

all other persons employed in connection with the admin-

istration and protection of forest reservations shall in all

ways that are practicable, aid in the enforcement of the

laws of the State or Territory in which said forest reserva-

tion is situated, in relation to the protection of fish and

game.’’

at p. 1269, now U.S. Code, Title 16, Sec. 553, provides:

‘‘Hereafter officials of the Forest Service designated by

the Secretary of Agriculture shall, in all ways that are prae-

—

ticable, aid in the enforcement of the laws of the States or

Territories * * * for the protection of fish and game.”’

(d) The Act of May 23, 1908, Chapter 192, 35 Stat. 251,

259, now U. S. Code Section 553, reenacts the provision in

the Act of March 4, 1907, above set forth.

The Pisgah National Game Preserve was established by

Presidential Proclamation under the authority of the fol-

lowing portion of the Agricultural Appropriation Act of

August 11, 1916, Chapter 313, 39 Stat., 446, 476, now 16

U.S. Code, Section 683, to wit:

“That the President of the United States is hereby au-

thorized to designate such areas on any lands which have

been, or which may hereafter be, purchased by the United

States under the provisions of the Act of March first, nine-

teen hundred and eleven (Thirty-sixth Statutes at Large,

page nine hundred and sixty-one), entitled ‘An Act to

enable any State to cooperate with any other State or

States, or with the United States, for the protection of

watersheds of navigable streams, and to appoint a com-

mission for the acquisition of lands for the purpose of

conserving the navigability of navigable streams,’ and

Acts supplementary thereto and amendatory thereof, as

should, in his opinion, be set aside for the protection of

yame animals, birds, or fish; and whoever shall hunt, catch,

rap, willfully disturb or kill any kind of game animal, game

ir nongame bird, or fish, or take the eggs of any such bird

m any lands so set aside, or in or on the waters thereof, ex-

ept under such general rules and regulations as the Secre-

ary of Agriculture may from time to time prescribe, shall

fined not more than $500 or imprisoned not more than

ix months, or both.’’

Determination and Authorization of Secretary of

Agriculture.

The Cireuit Court of Appeals sustained the validity of

he Determination and Authorization of the Secretary of

Agriculture, dated September 9, 1939, Volume 4, Federal

‘*Determination and Authorization’’

‘‘T have considered the information and evidence ad.-

duced by the officers of the Forest Service relative to the

conditions of the land and deer herd on the Pisgah National

Game Preserve in the Pisgah National Forest in North

Carolina, established by proclamation of the President

issued October 17, 1916, 39 Stat. 1811, and I hereby find

and determine that the number of deer within the Pisgah

National Game Preserve is so great that they have caused

and are causing serious damage and injury to the land

and forest within the Pisgah National Game Preserve and

I further find and determine that unless the deer herd is

reduced the damage and injury to the land and forest will

continue and grow progressively worse and will result in

further reducing the forage capacity of the Pisgah National

Game Preserve for deer;

Now, Therefore, I, Henry A. Wallace, Secretary of Agri-

culture, pursuant to the authority vested in me by the acts

of March 1, 1911, C. 186, 36 Stat. 961; February 1, 1906,

ce. 288, 33 Stat. 628, amendatory of the Act of June 4, 1897,

ec. 2, 30 Stat. 11, 35; August 11, 1916, C. 313, 39 Stat. 476;

to effectuate the purpose of those acts do hereby authorize:

‘*1. Employees of the Department of Agriculture as-

signed to duty on the Pisgah National Forest or persons au-

thorized pursuant to the Regulations of the Secretary of

Agriculture Relating to the Protection, Occupancy, Use

and Administration of the National Forest, published in

the Federal Register of August 15, 1936, to hunt and kill

deer on the Pisgah National Game Preserve and to remove

the carcasses of the deer from the Preserve during the

months of October, November, December, 1939, and Janv-

ary, 1940, or any part of that period designated by the

Chief of the Forest Service;

‘‘2. Employees of the Department of Agriculture as-

signed to duty on Pisgah National Forest to trap, capture

and ship live deer off the Pisgah National Game Preserve

t any time during the balance of the year 1939 and the

ear 1940 or any part of that period designated by the

‘thief of the Forest Service;

“Provided, that the deer shall be removed in such num-

ers and in such manner, and under such conditions as the

hief of the Forest Service shall find necessary for the

reservation and protection of the land and forest, the

roperty of the United States.

Given under my hand and the seal of the United States

partment of Agriculture, Washington, D. C., this 9th

ay of September, 1939.

H. A. Wat.ace,

Secretary of Agriculture.’’

Senate Debate on Game Preserve Amendment.

On July 1, 1916, the United States Senate debated the

ame Preserve Amendment of August 11, 1916. The

ireuit Court of Appeals construed the State Act of 1915,

upra —, to grant an exclusive game jurisdiction to the

nited States and held the debate showed acceptance of

wh a grant. Portions of the debate are as follows, 53

‘ong. Reeord, page 10, 327-10, 328:

“Mr. Gore. (In charge of the bill.)

‘“T understand that in North Carolina there is a good

eal of depredation in the game in the forest reserves, and

) prevent this is really the point to be accomplished by

is legislation. * * * The Senator from North Carolina

Mr. Overman) can explain the necessity for this provision

ore fully and forcefully thanI can. * *

“Mr. Overman.

“T want to say that in the Appalachian Range the Gov-

mment has acquired what is known as the Vanderbilt

state. Mr. Vanderbilt has established a game preserve

nd the only purpose of this amendment is to protect the

——

game on that Preserve. * * * The land purchased there

constitutes a game preserve. The State of North Carolina

has given its consent to this legislation; and it is proposed

that the President may set aside that land. We have made

it general, however, as to the Appalachian Range reserva.

tions under the Weeks Bill, because there might be some

land just across the line in Tennessee that it would be de-

sirable to cover. * * *

““Mr. Jones.

‘‘Now, there is no suggesiion that there is any special

need of a game preserve in any of these other places.

“*Mr. Overman.

‘‘The Senator from New Hampshire wants it to apply

to his State.

“*Mr. Jones.

‘‘He simply suggested that the Weeks Law does apply

to it. Now, I do not know whether there is any particular

need of a game preserve up there or not.

“‘Mr. Overman.

‘‘T want to say that my amendment that was submitted

to the Committee said ‘purchased by the United States in

the Western part of North Carolina.’ The Agricultural

Committee itself struck that out, so that it might apply to

Virginia, Georgia, Tennessee, and New Hampshire and

the White Mountains.”’

(1129)

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