How Counting Sheep Saved the U.S. Forest Service
May 3, 2011, marks the centennial of the U.S. Supreme Court’s decision in U.S. v. Grimaud. We are re-posting Char Miller’s blog entry about this landmark case with some additional documents. It originally appeared on April 27 on his blog at www.KCET.org.
You’ve probably never heard of Pierre Grimaud. But when you pay to use one of the recreational fee areas within the San Bernardino or Los Padres national forests, you might want to thank him. The same is true the next time you get a permit to camp deep in the Southland’s San Gorgornio or Cucamonga wilderness areas. And if you you’ve ever applied for a permit to run cattle on the Cleveland National Forest or graze sheep within the folds of the Sierra or San Gabriel mountains, you now know to thank this same early 20th-century shepherd.
Grimaud never knew that he would play a major role in helping to set the conditions by which 21st-century Americans could use the public lands, or that he in effect would save the national forest system itself. Certainly he had no idea that anyone would make a federal case out of the ill-advised decision he and his partner P. J. Carajous made in the early summer of 1907 to sneak his flock on to the Sierra Forest Reserve (now the Sierra National Forest). The first inkling of trouble he would have had was when a forest ranger stopped him and asked to see this permit. Grimaud admitted he did not have one, and with that he was on his way to court.
Yet so complex was this moment–raising as it did constitutional questions about Congress’ ability to delegate administrative authority to other governmental entities (in this case the U.S. Forest Service)–that U.S. v. Grimaud took four years of legal wrangling before the dust had settled. Finally, on May 3, 1911, one hundred years ago, the U.S. Supreme Court determined that Grimaud was guilty as charged.
The Basque shepherd could not really play the innocent: he and his peers across California had borne witness to the establishment of the first forest reserves, sanctioned under the 1891 Forest Reserve Act that empowered presidents to withdraw forests and grasslands from sale so as to protect these essential resources. Among the very first western public lands that received this new designation were those in southern and central California: Presidents Harrison and Cleveland set aside units of what would become the Angeles (1892), Cleveland (1893), San Bernardino (1893) and Los Padres (1898) national forests; the Sierra was created in early 1893.
The federal presence expanded six year later when Congress enacted the so-called Organic Act of 1897, which granted management authority to the Department of the Interior, then the nation’s sole custodian of the public domain. As part of this process, rangers were hired, and regulations were set for the use of these reserves’ various resources, whether animal, vegetable, or mineral. And when in 1905 the U.S. Forest Service was established as part of the Department of Agriculture, and the nation’s forests transferred to its care, the number of rangers increased again, the permitting process intensified, and the related rules and fees were published widely.
Just as broadly were they criticized, for few in the west found this new regime palatable. It was a rare newspaper that did not stoke the region’s anger with scathing editorials and mocking cartoons. Miners, loggers, and ranchers challenged the agency’s authority directly, through political agitation; and indirectly by furtively panning for gold; cutting timber on the sly; and sneaking cattle, goat, and sheep on and off protected ranges.
California sheep herders like Grimaud were particularly adept at this deceptive practice: it was built into their annual cycle of grazing. In the winter months, their large flocks chewed up the Southern California rangelands in the coastal mountains and valleys. By spring, they had headed for greener pastures, roaming north through the Owens Valley, then eating their way up into the alpine meadows by the height of summer; they then mowed down the western slope of the Sierra on their long march back to their winter base. Along this lengthy migration there was little respect paid to the distinctions between public lands and private property, no care about trespass, little thought to the resultant devastation. As one contemporary critic wailed:
“There can be no doubt that sheepmen are a curse to the state; they penetrate everywhere, destroy the roots and seeds of the grasses; in traveling over the hills they keep the rocks and earth moving, destroying vegetation and denuding the hills of soil.”
Fed up, communities all along the dust-choked, hoof-hammered-hard trail petitioned the federal government for redress, and the speed with which the region’s forest reserves were created to protect and regenerate that battered terrain is itself a reflection of the pressing need to control the damage.
Grimaud’s actions in running his sheep up into the Sierra Forest Reserve was thus part of a larger pattern of the use and abuse of the region’s grasslands; in 1902 alone, the Interior Department estimated, 60,000 sheep had trespassed on the Sierra Reserve. He also knew what he was doing; his guile was a measure of his guilt. On this, Grimaud was called out by none of than Justice Joseph Rucker Lamar, who delivered the Supreme Court’s unanimous opinion. Grimaud, he wrote:
“did knowingly, willfully, and unlawfully pasture and graze, and cause and procure to be pastured and grazed, certain sheep (the exact number being to the grand jurors unknown) upon certain land within the limits of and a part of said Sierra Forest Reserve, without having theretofore or at any time secured or obtained a permit or any permission for said pasturing or grazing of said sheep or any part of them, as required by the said rules and regulations of the Secretary of Agriculture…”
This dense legalese aside, the Supremes knew a con when they saw one.
Yet constitutional law is also a legal thicket, so Grimaud’s case turned less on his uncontested willfulness than on his lawyers’ creative defense of his actions. They rejected the charge that their client’s behavior constituted a public offense against the United States because when Congress voted in support of the relevant forest legislation and accompanying ordinances, it was acting unconstitutionally; these “rules and regulations,” they declared, were “an attempt by Congress to delegate its legislative power to an administrative officer.” If, as they alleged, such delegation was unconstitutional, then Grimaud could not have committed a crime because there was no crime to commit.
Not buying that defensive maneuver was the grand jury empanelled to hear the case before the U.S. District Court in the Southern District of California: in November 1907, it upheld the prosecution’s arguments, concluding that Pierre Grimaud had acted against the “peace and dignity of the United States.”
The defense immediately demurred, meaning the case would be heard before the district court itself, a body that proved more susceptible to their pleadings. On a split vote, the majority agreed that Congress did not have the right or power to delegate its authority; Grimaud, they concluded, could not have committed a crime against regulations that did not have force.
Now it was the federal prosecutors turn to appeal, and they did so, sending the case on to the Supreme Court. There, it was first argued in late February 1910 and reargued a year later. At long last, on May 3, 1911, the court reversed the lower court’s ruling, undercutting the defense by observing simply that the “authority to make administrative rules is not a delegation of legislative power.” Grimaud’s violation was punishable as a public offense.
This protracted argument may seem arcane but it’s not: had the Supreme Court sided with Grimaud; had it sided with Fred Light, in Light v. U.S., a parallel case from Colorado in which cattleman Light had been charged with letting his animals roam on a forest reserve without permit, the one-two punch would have knocked out the Forest Service. The fledgling agency would not have had the right to charge fees so as to control over-grazing on the forests and grasslands under its care; its stewardship would have been handcuffed. That’s the outcome many on the west desired, and why they were thrilled by the initial decision in U.S. v. Grimaud. That explains, too, why the Colorado state legislature went so far as to pay all of Fred Light’s legal expenses. These opponents of federal-lands management hoped these two cases perhaps would set the stage for the implementation of a more-lax state control of the public domain.
The Supreme Court decisions dashed their hopes then, but this defeat has not stopped western legislators or resource extractors from continuing to dispute federal regulation. A series of Sagebrush Rebellions have roiled regional politics across the 20th-century, and have included lawsuits frivolous and furious, hostile congressional hearings, vituperative talk-show condemnations, and, occasionally, violence. In the 1980s, the commissioners of Nye County, Nevada, rammed bulldozers into Forest Service fencing to lay claim to the lands beyond; in the same decade, vigilantes took pot-shots at agency offices, booby-trapped official vehicles, and in one instance placed a bomb under a personal car parked in the family driveway. We may be in the midst of another uprising, as right-wing commentators and tea-party politicians are trying to stir up yet another revolt in the run up to the 2012 presidential election (see my earlier column, here).
Yet for all their energy, none of these attempts so far have succeeded in dislodging the precedent-setting reality on the ground that a California shepherd established when he drove his flock up into a high-country meadow. In doing so, Grimaud insured that the entire national forest system would long endure.
Char Miller is the Director and W.M. Keck Professor of Environmental Analysis at Pomona College, and editor of the just-published Cities and Nature in the American West.