USFS Terror from Yesteryear

While it may appear that the United States Forest Service is ramping up its war against the miners, as the following letter written in 1910  by miners of the Swank Mining District near Liberty, Washington and addressed to then Secretary of the Interior, Richard Ballinger, crimes perpetuated by the United States Forest Service against miners date back to the establishment of their agency.

Liberty, Wash., 
January 5, 1910. 

To the Hon. Secretary Of The Department Of The Interior, 

Washington, D. C. 

Hon. Mr. Ballinger, 


Realizing the gravity of the questions involved by the unwarranted attack of Mr. Pinchot and others upon your construction of existing law, and your administration of the affairs of the Department of the Interior, and trusting that we may be of mutual assistance to each other, we, the undersigned committee of miners of Swank mining district, Kittitas County, State of Washington, would respectfully present to your notice the following abuses of existing law and misuse of power as administered by the national forest officials within the aforementioned mining district, which is within the Wenatchee National Forest, State of Washington, The act of June 4th, 1897. 34 Stat., 35, conferring upon the Secretary of Agriculture the power (now wielded by Gifford Pinchot, and approved by the Secretary of Agriculture) to make regulations governing the occupancy and use of national forests, and to preserve the timber thereon from destruction, and providing a penalty for the violation thereof, thereby placing it on the same footing as statutory law, we believe to be, if not unconstitutional, perniciously far-reaching in its effects, as administered, and likely to lead the Government into endless litigation.

The Congress doubtless did not anticipate the use of this power only to insure the objects of said reservation, it being so stated in the act; a power to be used as needs required to perfect the National Forest Service on lines consistent with the best interests of the Government and not antagonistic to existing law. This power, this grand privilege (rightly or wrongly conferred), should never bo conferred upon any except those of the very highest ideals and the profoundest respect for statutory law. The abuse of this power lies in the encroaching upon statutory law—adding to and embellishing as Buited their tastes, utterly regardless of the rights and privileges of those living under said law; forgetting or ignoring the all important fact that the Congress and other lawmaking bodies had already prescribed the duties and enumerated the privileges of those complying with the statutory requirements. This abuse is too evident in the mining industry, as is evidenced by the numerous court cases, cases wherein the Government, as represented by the National Forest Service, is invariably contesting the miners' statutory right to the enjoyment of the privileges accruing from faithful compliance with the statutes, thereby placing the Government in the false position of a party of the first part not willing to abide by the agreement.

Some of the more notable abuses in this connection are, viz:

Universal and unjustifiable opposition to miners seeking a patent to mineral ground.

Denial of the right of the miner to the full enjoyment of the surface included within the boundaries of his claim, even though he has faithfully fulfilled the statutory requirements.

Contending that the grass and timber thereon belongs to and is at their disposal.

Contending that it is unlawful to have buildings or other improvements on a mining claim other than what directly aids in the development of said mining claim.

Contending that an owner of a mining claim cannot lawfully give his consent for another to have his home upon his claim.

Contending that the National Forest Service has a right to collect ground rent from persons living upon another's mining claim.

Contending that a miner does not have the right to the use of wood for fuel from his his own claim (without a permit) unless he is working and developing said claim and living thereon at the time.

Contending that a miner cannot have wood for domestic fuel from his own claim, without a permit, even though he is working upon the claim, unless he is a resident thereon at the time.

They also deny "intoto" the miners' statutory rights, under the timber and stone act, to the free use of timber from mineral lands for domestic purposes; contending that a mining claim is not valid unless (to use their oft repeated phrase) "the claim is a producer of mineral in sufficient quantities to justify a prudent man in working it;" contending that they have the right to issue grazing permits upon mining claims as well as the public domain, and enforcing their contention by turning loose upwards of 200 head of cattle within the Swank mining district without, a herder, to roam at will, to the great annoyance of the minors and the destruction of their ditches, roads, and trails and other improvements and the pollution of the waters of the creeks used for domestic purposes.

Contending that they not only have the right, but are obliged (upon proper application), to survey, stake off, and accept requests for filing homestead entries upon a valid mining claim.

Contending, also, their right to send an expert on the claim to determine which it was most valuable for, mineral or agriculture, and in one of their "Use Books" of recent date the instructions to said experts were to the effect'' that it was not necessary for them to take samples from the workings of the miner, but that they could select their own place to sample." In other words, said expert would not have to take samples from the lode or vein if it was a quartz claim, nor would he be obliged to take a sample from the "pay streak" if it was "placer." No; not even from the creek channel. He could with perfect propriety (under hiB instructions) take his samples from the surface of the ground or from the waste dirt on the dump (as has been done in this camp by one of their experts). What a farce! And to think that a court of law would be expected to accept such testimony as one of their experts (?) could adduce, from an investigation conducted on these lines, as expert testimony.

Such regulations! Such rulings! could have but one effect, viz, to encourage, aid, and abet the unscrupulous in successfully contesting the legal holdings of the miner.

By assuming to give expert (?) testimony after only a superficial examination (an examination we believe to be without authority of law) they very covertly and adroitly throw the burden of proof upon the miner, even though he has discovered mineral and faithfully performed the statutory requirements, thereby making a travesty of justice and a mockery of the statutory rights of the miner.

A case in point, in this connection, is that of one H. Monahan, a would-be rancher, contesting the rights of J. J. Stuart and A. R. Jordin, owners of placer claims. The claims contested lie on Lyons Creek, a mineral-bearing creek, and, although mineral has been found, the claims are still in course of development. This contested ground was experted by one Reggins, national forest expert, and, under protest of J. J. Stuart and others, took his test samples from the waste dirt dump. 

Another case in point is that of Edmond Grady, prospective rancher, contesting the right of W. A. Wells to placer ground, that for which a patent is now pending. The National Forest Service has in this case gone to the extent (in their endeavor to aid the contestant against the legitimate owners) of recommending to the Department of the Interior that this tract oe withdrawn from the national forest and thrown open to entry. A very considerable portion of the land applied for by Mr. Grady is known to be in sec. 36, T. 21 N., R. 17 E., W. M., state school lands, and we believe not subject to entry, nor any other form of disposal by the National Forest Service. We are informed that the national forest officials in listing this tract in the department for withdrawal so worded their recommendations as to deceive their superior officers regarding the true location, stating, if we are rightly informed, that " possibly after survey that a small part of this tract will be found to be in sec. 36, T. 21 N., E. 17 E., W. M.," whereas there is approximately 25 acres in sec. 36, and they know it. 

Another tract in sec. 36, T. 21 N., R. 17 E., W. M., has been listed in your department with recommendations that it be opened for entry, viz: A tract of 58 acres upon which Chas. H. Powles applied for a homestead early in 1908, since which time his father, John E. Powles, has discovered gold thereon, and has located and worked the same for its mineral. We are informed that in listing this tract that they advise (deceptively) that, after survey this tract will be approximately in sec. 31, T. 21 N., R. 18 E., W. M., a statement they know to be erroneous. We append one of their own maps. The line marked with two crosses in red ink is the line between 31 and 36, showing that the tract is almost wholly in 36. In their endeavor to discourage the mining industry they would deceive the department regarding the location of state school lands.

This encouraging homestead entries, aiding and abetting in the survey; the grossest of partiality in their alleged experting; recommending listing for entry occupied and improved land, also valid mining claims; recommending listing for entry state school lands; encouraging homestead entries on state school lands; assisting unscrupulous persons as against the rightful owners; wording recommendations to head of department in a manner calculated to deceive; seeking, by a policy of withdrawals, to subvert the United States homestead laws by allowing entries to be made upon unsurveyed lands; and by devious other exhibitions of partiality have the personnel of the National Forest Service shown themselves to be unfit to represent the United States Government. Yet the subordinates in the field doing the work often say ''Don't blame me. I am working under orders."

Two other instance showing their antagonism to the mining industry and their contempt for the mining laws, viz:

About 4 miles north of the town of Liberty, on Swank Creek, at a place known as "Mineral Springs," there is a small flow of sulphurous water, of questionable value, exuding from a quartz vein. We understand that considerable of a tract at this point has been listed for withdrawal. This tract is covered by mineral entries and the locators have not abandoned their claims.

Also the case National Forest Service vs. Cascade Mining Co., T. P. Carson, Mjjr., wherein the National Forest Service sought to have mineral ground, from which thousands of dollars of gold has been taken, set aside for a ranger station. Said mineral ground is not within the reserve. They did not recommend the setting aside of this tract because they considered it centrally and commandingly situated, as is required, for their uses and purposes.

Nor could they consistently recommend this particular tract because they had no suitable tract within a national forest reserve that covers practically one-half of the State of Washington. No! The National Forest Service wanted this particular tract because it is mineral ground and is held and worked as such. They wanted it because it is " bar ground lying between Swank and Williams creeks, two creeks famed for their placers, and commands the drainage of both creeks. They wanted it, knowing that claims lying above depended upon this claim for drainage, and that if it was set aside they could stop the up creek miners from prosecuting to completion their drain tunnels from this mine. In National Forest Use Book, Third Revision, revised no doubt by Gifford Pinchot, and bearing date of approval June 3, 1908, by James Wilson, Sec. of Agriculture, in opening paragraph, will be found the following sentence, "Legitimate improvements and business enterprises are encouraged." Is it encouraging business to prevent it? Is it encouraging to the miner to have his claim taken away from him? Is not mining a business enterprise? Is not running a drain tunnel to a placer claim legitimate improvement?

The second paragraph reads thusly, "National forests are open to all persons for all lawful purposes." Is not mining for gold considered a lawful purpose? If it was not the determined policy of the National Forest Service to discourage, hinder, delay, disrupt, and by pursuing persistently a policy of discrimination, and partiality inimical to the mining industry, and calculated to discourage the miner to the verge of abandoning his claim and leaving the district, why did the first ranger to assume full charge here openly boast, "We are going to drive you miners all out of here." Why did he repeatedly say, "You have no mining district, and we are going to prove it? Why did this national forest employee assert repeatedly, "You have no gold here," when the production of gold has never ceased a single year since discovery, 1868? Why did he maintain that "there was not a valid mining claim in the district? Why did he make the remark that "we have a buyer that will take every stick of this timber?" Why did he endeavor (and unjustly, too) to fasten the crime of trespass upon many of the most prominent miners? Because, if proven guilty of the crime, or any other on their list, all rights and privileges could be denied them thereafter within the boundaries of the national forests. That would mean that they could not mine any more, or even live within the boundaries of a national forest.

We maintain that this was a preconceived plan or policy, calculated to discourage and possibly kill the mining industry. If it was not, and it this attache1 was not working under instructions, why was he not discharged instead of being transferred to another part of the reserve, when at a later period charges were preferred against him and supported by sufficient evidence to have caused his instant dismissal?

Whom would profit by the disruption of the mining industry and the abandonment of the mining districts? Certainly not the United States Government, for the precious metals that abound within the confines of mining districts is of more value to the Government than the timber that grows therein. There is no use'that timber can be put to that is of more profit to the Government than its use in developing the mineral industry.

Inasmuch as it is unlawful under the present statutes to remove timber from a mining district, why should not that be sufficient incentive for the timber "barons" to endeavor to crush the mining industry? Or does "Shylock" think the United States is producing too much gold? Possibly the two factions are in league against the miners.

Be that as it may. Certainly never since the inauguration of the National Forest Service in this district has an attach^ of the service ever voluntarily done one single act to encourage mining. We do not hesitate to say that possibly no State in the Union offers greater possibilities in a mineral way and under proper encouragement than the State of Washington, and that the big timber companies look with covetous eyes upon our vast timber resources is no secret. That the mineral lands may be presented to the prospector; that the timber thereon may be preserved for the development of the mineral; that the miner may not be hampered, delayed, harrassed, persecuted in his self-appointed task of developing the mineral resources of this glorious State, we would respectfully suggest that you use your influence to the end that all mineral lands be withdrawn from the national forest, and the "timber and stone act" repealed.

In closing we most respectfully tender our services to the end that the statutory law may be upheld, and that equal right to protection under the same shall not be denied the individual. And we most heartily commend your determination to destroy "policy" and restore "law" in the department over which you preside.

We have the honor to be 

Respectfully, yours, 

(Sgd.) M. W. Mikesell. 
K. M. Wells. 
Cakl Enenkel.
C. B. Killson.


Mining Rights (dot) org is copyright 2010 by the South West Oregon Mining Association