Message to the Senate Explaining the Administration's Reasons for Eliminating from the Chugach National Forest of Alaska 12,800 Acres of Land Fronting on Controller Bay

To the Senate of the United States:

On June 27th last, your honorable body adopted the following resolution:

Resolved, That the President of the United States be, and he is hereby, requested to transmit to the Senate of the United States copies of all letters, maps, executive or departmental orders or instructions, surveys, also applications to enter land, or for rights of way for railroads or otherwise, and all other official reports, recommendations, documents, or records in the Depart merits of War, Interior, and Agriculture, or by any of the officials or bureaus of these departments, not included in the report of the Secretary of the Interior of April 26, 1911, printed as Senate Document No. 12, Sixty-second Congress, first session, relating in any way to the elimination from the Chugach National Forest, in Alaska, of land fronting upon Controller Bay, approximating 12,800 acres; especially referring to such papers, documents, etc., as relate to the applications of the Controller Railroad & Navigation Co. for rights of way or confirmation of its maps of rights of way or harbor rights or privileges in or near to the said Controller Bay, or upon the Chugach National Forest, or upon lands eliminated therefrom, or upon the tide lands or shore lands of the said Controller Bay, with such information, if any, as is in the possession of the War Department, relating to the character of Controller Bay as a harbor, its soundings, and a designation of those portions of the harbor which are available for the use of deep-water vessels.

Also, to include in the report hereby requested the names of the soldiers whose claims are to be used as bases for the applications for the land referred to, the mesne and subsequent assignments, and other data relating thereto, with a statement of the present status of all said applications to enter said lands or for rights of way thereon.

I herewith submit copies of all the documents above requested. The records in the Department of Commerce and Labor are not asked for in the resolution, but the Secretary of the Interior has secured from the Secretary of Commerce and Labor certain documents relating to the subject matter on file or of record in the Bureau of Coast and Geodetic Survey, and those are transmitted as part of the documents furnished me by the Secretary of the Interior. I also submit such documents as are on the Executive Office files relating to the Executive order of October 28, last.

I deem it wise and proper to accompany the submission of these documents with a statement in narrative form of the action of the administration with the reasons therefor.

The Executive order of October 28, 1910, referred to in the resolution, was in the terms following:

"THE WHITE HOUSE, Washington, October 28, 1910.

"Under authority of the act of Congress of June 4, 1897 (30 Stat., 11, at 34 and 36), and on the recommendation of the Secretary of Agriculture, it is hereby ordered that the proclamation of February 23, 1909, enlarging the Chugach National Forest, be modified to reduce the area of such national forest by eliminating therefrom the following-described tract, containing approximately 12,800 acres of land, which has been found, upon examination, to be not chiefly valuable for national forest purposes:

"Beginning at a point where the meridian of longitude 144 degrees 5' west crosses the coast line of Controller Bay, thence north along said meridian line to the parallel of latitude at 60 degrees and 10' north; thence west along said parallel to a point where the same crosses the coast line at or near the mouth of Behring River, and thence along the coast to the place of beginning.

"The tract above described is hereby restored to the public domain.

"William H. Taft."

Controller Bay is upward of twenty miles in total length and five or six miles in width and is land-locked by a number of islands. It was supposed for some time to be so shallow as to make its use for navigation impossible, but in 1907 a channel was discovered, which passed from the ocean to the southeast of the island of Kanaka and curving into the bay extended southeasterly some seven miles. Mr. McCabe, solicitor of the Agricultural Department, states in the memorandum prepared by him for submission to the secretary and to me, that investigation had shown that for a distance of six miles the frontage of Controller Bay was on deep water, to be reached by trestles of ordinary length.

A more exact description of the channel is as follows: For four miles it is about three quarters of a mile wide and for three miles about 2,000 feet wide, gradually approaching nearer to the shore of the mainland. The channel is eleven fathoms where it enters the bay, and continues for more than five miles to have a 30-foot depth, and then gradually shallows until it is from twelve to fifteen feet at mean low water. The mean high tide would increase its depth nine feet. The bottom of the channel is glacial silt and very easily dredgible, so that it would be entirely practicable to widen the channel and deepen it the full length of seven miles. The tract eliminated by the Executive order has a right-angled triangular form, with the shore line or high-water mark as the hypotenuse, between six and seven miles long and roughly about the same length as the channel I have described. The north shore opposite the entrance of the channel to the bay is between two and three miles from low-water mark, and is separated therefrom by tidal mud flats that are covered at high water. The 30-foot contour line is about a mile farther from the shore line.

All the territory .surrounding Controller Bay was included in the Chugach Forest Reservation in 1909 by a proclamation of President Roosevelt. The importance of Controller Bay is that it lies about twenty-five miles from very valuable coal deposits, known as the Bering coal fields. Katalla Bay is to the west of Controller Bay and almost immediately adjoins it. It is an open roadstead upon the shore of which an attempt was made by the Morgan-Guggenheim syndicate to establish a railway terminal, and thence to build a road to the Bering coal fields, already mentioned. The attempt failed for the reason that the breakwater protecting the terminals was destroyed by storms and the terminals became impracticable. Some fifty miles or more farther west of Katalla Bay is the mouth of the Copper River, where there is an excellent harbor, on which is the town of Cordova. There the Copper River Railroad, owned by the Morgan-Guggenheim interests, has its terminals, and the line runs to the northeast along the Copper River and has nearly reached certain rich copper mines in the interior.

A branch from this main line is projected to the Bering coal fields and is feasible.

When the channel in the Controller Bay was discovered, Mr. Tittmann, superintendent of the Coast Survey, as shown by his letter in the record, was of opinion that it was of great value and ought to be maintained as a naval reservation because of its proximity to the coal fields. His letter was submitted by the Secretary of Commerce and Labor to the Secretary of the Interior, who invited the comment of the Director of the Geological Survey. That officer replied that the harbor was a poor one, and that it would not be as good for a naval reservation as one already selected, but that he thought that private capital ought to be encouraged to construct a railway from the channel over the mud flats to the shore and thence to the coal fields. Captain Pillsbury of the Army Engineers, in a report in the record made in 1908, mentions three possible objections to Controller Bay: First, that the surrounding islands may prove to be so low as not fully to protect the channel; second, that the flats extend two or three miles from the shore; and, third, that ice formed in the rivers entering the bay and affected by tidal currents may destroy structures put upon the flats and especially a long trestle built over them.

In December, 1909, Mr. Richard S. Ryan, representing the Controller Railway & Navigation Company, applied to Mr. Pinchot, the then Forester, for an elimination from the Chugach Forest Reservation of a tract of land to enable his company to secure railroad terminals, bunkers, railroad shops, etc., on the northeast shore of Controller Bay. This application was referred by the Associate Forester to the District Forester at Portland, Ore., and by him to the Forester in Alaska. The result of these references and the application was that early in 1910 Mr. Graves, who had in the meantime become Forester, reported that there was no objection from the standpoint of forestry interests to the elimination of the tract indicated, or, indeed, of 18,000 acres on the northeast shore of Controller Bay.

The attention of the Navy Department was invited by the Forestry Bureau to the proposal to open the shore of Controller Bay to entry and occupation, and inquiry was made whether the Navy Department desired to use Controller Bay as a reservation and whether it objected to its being opened up. The answer was in the negative.

The matter was considered by the Forestry Bureau, by the Secretary of Agriculture, by the Secretary of the Interior, and by the General Land Office, and the result was a recommendation to me in May, 1910, that an elimination be made of 320 acres with a frontage of 160 rods on the northeast shore of Controller Bay. I entertained some question about the matter and stated my objections at a cabinet meeting. Thereafter, some time in June, I had an interview with Mr. Richard S. Ryan, the promoter of the Controller Railway & Navigation Company, to whom the Secretary of the Interior had stated my objections, which led to Ryan's sending a communication to the Secretary of the Interior under date of July 13, 1910. This letter was, in the secretary's absence, sent by the department to me at once. I considered the whole case in August, 1910, and directed that the 320 acres, recommended by both departments, be eliminated as recommended. Nothing was done, however, in the matter until I returned to Washington in October, 1910, when a formal order, which had been drawn in the Interior Department and was subsequently specifically approved by the Secretary of Agriculture and returned to the Interior Department, was submitted to me by the Acting Secretary of the Interior, with the approval of that department. The order was as follows:

Under authority of the act of Congress of June 4, 1897 (30 Stat., II at 34 and 36), and on the recommendation of the Secretary of Agriculture, it is hereby ordered that the proclamation of February 23, 1909, enlarging the Chugach National Forest, be modified to reduce the area of such national forest by eliminating therefrom the following described tract, containing approximately 320 acres of land, which has been found, upon examination, to be not chiefly valuable for national forest purposes and which is necessary for terminal purposes and desired by the Controller Railway & Navigation Co. for such purposes:

Beginning at a point on Controller Bay which bears south 17o 22' west, 1,196.7 feet from U. S. Location Monument No. 842; thence north 5,720.5 feet; thence east 2,202.1 feet; thence south 7,044.2 feet to a point on Controller Bay; thence following the meanders of the bay north 52o 30' west 1,460 feet; thence north 79o 26' west 800 feet; thence north 42o 34' west 380 feet, to the point of beginning, containing 320 acres, approximately, the same being in approximate longitude 144o 11' west from Greenwich, latitude 6o° 8' north.

The tract above described is hereby restored to the public domain.

The question finally came before the Cabinet late in October. After a full discussion of the matter, and after a consideration of the law, I expressed dissatisfaction with the order because it purported on its face to make the elimination for the benefit of a railroad company of a tract of land which the company could not secure under the statute, for it was a tract 320 acres in one body when only 160 acres could be thus acquired. In the second place, I preferred to make a much larger elimination of a tract facing the entire channel, and with sufficient room for a terminal railway town. I was willing to do this because I found the restrictions in the law sufficient to prevent the possibility of any monopoly of either the upland or the harbor or channel by the Controller Railway & Navigation Company, or any other persons, or company. For lack of time sufficient to draft a memorandum myself, I requested the Secretary of the Interior, who. with the Secretary of Agriculture, after full discussion, had agreed in my conclusion, to prepare a letter setting forth the reasons for making the larger elimination, so that it might become part of the record. The letter is of even date with the order. It does not set forth the reasons for the larger order as fully as I did in discussing it.

It had been originally suggested by the Forestry Bureau that 18,000 acres might safely be eliminated so far as forestry purposes were concerned, but fear had been expressed by one of the District Foresters that such a large elimination would offer an opportunity to the company to use land scrip and acquire title to extensive town sites, and the result of the joint consideration of both departments had been the reduction to 320 acres.

I wish to be as specific as possible upon this point and to say that I alone am responsible for the enlargement of the proposed elimination from 320 acres to 12,800 acres, and that I proposed the change and stated my reasons therefor, and while both secretaries cordially concurred in it, the suggestion was mine.

The statement of Mr. Ryan, who had been properly vouched to the Forester by two gentlemen whom I know, Mr. Chester Lyman and Mr. Fred Jennings, and who had produced a letter from a reputable financial firm, Probst, Wetzler & Company, was that the railway company which he represented had expended more than $75,000 in making preparations for the construction of a railway from Controller Bay to the coal fields, twenty-five miles away, but that they were obstructed in so doing by the order reserving the Chugach Forest Reservation, which covered all of the Controller Bay shore. He, as well as Probst, Wetzler & Company, gave every assurance that the Copper River Railway Company, owned by Messrs. Morgan and Guggenheim, had no connection with them, and that they were engaged in an independent enterprise in good faith to build an independent railroad. No evidence to the contrary has been brought to my attention since.

Of course it was possible that the owners of the Copper River Railway Company might attempt to buy this railroad when, and if, it was built. It was possible that Mr. Ryan was acting in the interests of the Copper River Railroad, although I did not believe it; but, whether this was true or not, it was clear that the order of elimination by reason of the restrictions of the act of Congress hereafter explained, would not permit the owners of either railroad to shut out any other capitalists who might desire to construct a railroad from the channel of Controller Bay to the coal fields; and if by this order we could secure the construction of a railroad from Controller Bay to the coal fields, it would be a distinct step in the useful development of Alaska. The rates of freight for coal to be charged, of course, would always be subject to congressional control, and if Government ownership seemed a wise policy under the peculiar circumstances, ample land for right of way, harbor frontage, and terminals must always remain available under the law for Government use, or if it is preferred to take over to the Government a railway built by private enterprise, condemnation is easy.

The thing which Alaska needs is development, and where rights and franchises can be properly granted to encourage investment and construction of railroads without conferring exclusive privileges, I believe it to be in accordance with good policy to grant them.

Full authority is given in the Federal statutes for the location of railroads and the acquisition of a right of way over public lands by such location and construction of the road in Alaska (30 Stat. L., 409), and this is permitted even in the forest reservations. (30 Stat. L., 1233.) Pains are taken in the statute to prevent one railroad from excluding another by the appropriation of the only possible pass or canon or defile through which a road can be built between two points. The difficulty presented by a forest reservation in a case like this is that there is no opportunity to secure town sites or proper terminals for a coal road and shipping point in such a reservation. When, on the recommendation of Forester Pinchot, the Chugach National Forest was created by proclamation of President Roosevelt in July, 1907, there were excepted from the forest the several areas contained within boundaries formed by circles described with a radius of a mile each from the centers of ten small towns or settlements. Among these were Eyak, on Orca Bay, and Valdez, on Valdez Arm. A little later (September 18, 1907), there was eliminated from the reservation approximately 33,000 acres of the water front on Valdez Arm, the tract thus eliminated being a mile wide, abutting on the shore, and following the contour of the arm or bay for a distance of more than thirty miles. At this time, Valdez was deemed important as a future port. Both Orca Bay and Valdez Arm are excellent harbors and have deep water near the shore.

While it does not appear that the creation of railway terminals and harbor facilities was one of the reasons for the exclusion from the national forest of the lands around the town of Eyak, or for the elimination of 33,000 acres at Valdez Arm, it certainly was not regarded as necessary to include or to retain these lands within the national forest for fear they would be entered by a railroad, because on April 24, 1907, Mr. Ballinger, then Commissioner of the General Land Office, had called the attention of Secretary Garfield to the fact that a number of transportation companies were seeking to obtain rights of way through the lands included in the general area proposed to be reserved. Doubtless the rights of the public were thought to be sufficiently safeguarded against monopoly of harbor facilities under the limitations of the statute hereafter mentioned, which were the same then as now. As a matter of fact, the Copper River Railway Company, owned by the Morgan-Guggenheim Syndicate, having applied for terminal and station grounds at what was then called Eyak shortly before the Chugach Forest Reservation was proclaimed, has established its terminals there and thus has been developed in the immediate neighborhood the well-known terminal town of Cordova. Whenever the Bering coal fields are opened this company can readily reach them by a branch line, the construction of which has already been considered and is entirely practicable. Indeed, its promoters have insisted to the Secretary of the Interior that this is the proper method of developing these coal fields, and that they would not be interested in building a direct line to Controller Bay, where it would be necessary for them to duplicate terminal facilities they already have at Cordova on a better harbor, and where coal is not the only commodity seeking transportation. If this position is correct, and it seems to have sound economic reasons behind it, the only effect of preventing railroad construction at Controller Bay would be to leave the field entirely to the Copper River Railroad.

If a railroad was to be constructed from Controller Bay to the Bering coal fields, it was perfectly evident that there must be a terminal town on the shore of Controller Bay, and I was therefore glad and anxious to throw it open to entry and settlement as one important step in encouraging railroad enterprise. I was certain that Congress had provided, in the statutes affecting the entry and settlement of land in Alaska, limitations which would prevent the possibility of the exclusive appropriation of the harbor and channel of Controller Bay or its shores or upland to any one railroad. This, I propose now to show.

The only practicable method for securing title from the Government in such a tract as this after its elimination is by the use of what is called "soldiers' additional homestead right," evidences by scrip. The statutory limitations upon this method of acquiring title are threefold:

1. No more than 160 acres can be entered in any single body by such scrip. (30 Stat. L., 409; 32 Stat. L., 1028.)
2. No location of scrip along any navigable waters can be made within the distance of eighty rods of any lands already located along such waters. No entry can be allowed extending more than 160 rods along the shore of any navigable water, and along such shore a space of at least eighty rods must be reserved from entry between all such claims. (30 Stat. L., 409; 32 Stat. L., 1028.) Moreover, the statute expressly provides that a roadway sixty feet in width, parallel to the shore line as near as may be practicable, shall be reserved for the use of the public as a highway. (30 Stat. L., 413.)
3. Nothing in the act contained is to be construed to authorize entries to be made or title to be acquired to the shore of any navigable waters within said district. (30 Stat. L., 409; 32 Stat. L., 1029.)

Under the first limitation the navigation company and every other person is prevented from locating more than 160 acres in one body. By the construction of the land department, as shown in the record, this requires a separation between any two entries by the same person or in the same interest of a tract of forty acres. This would prevent the possibility of any one person or any one interest acquiring an entire tract like that of 12,800 acres.

The second limitation is important in that it prevents the entry of claims at any point on the shore having a greater frontage than half a mile, and requires that between that and the next claim taken up there shall be a frontage reserved to the public and kept in public control of a quarter of a mile. The consequence is that in the seven miles of the frontage of this eliminated tract there must be reserved for Government control and use, and such disposition as Congress may see fit to make, and free from private appropriation, a frontage aggregating about 2-3/4 miles, and so distributed along the shore in frontages of eighty rods as to make certain of a public frontage of this width having all the advantage that any private frontage can have. In other words, if a tract with a half-mile frontage is located at a particularly advantageous place with reference to the harbor, then on each side of that frontage must be reserved to the public a frontage of a quarter of a mile, or a half mile in all, for public uses. These public frontages are to be connected by a sixty-foot street reserved parallel to the shore.

These two restrictions necessarily prevent a monopoly of land abutting on the shore, and as they necessarily prevent a monopoly by anyone locator, or in the interest of any company for whom locators are acting, they take away the motive for the acquisition of land and frontage merely for the purpose of excluding other companies and possible competitors and tend to confine locators to the acquisition of land to be profitable in its use.

Since the executive order was issued, October 28, 1910, there have been four locations under soldiers' scrip—three of them of 160 rods each along the bay, separated by two divisions of eighty rods, dated November 1, November 10, and November 11, 1910, respectively. I shall assume that all of them are in the interest of the Controller Railway & Navigation Company. None of them has been approved or passed to patent, but I shall assume they can be passed to valid patent. Where the fourth one, dated March 11, 1911, is, does not appear on the map opposite page 2, but it is understood to front 160 rods on the bay shore on the east side of the Campbell River. In addition, upon one of the 8o-rod intervals, there is filed what is called a terminal railroad claim of forty acres, covering the entire frontage of eighty rods. This was filed December 14, 1910, after the location of the two scrip entries which it connects. It is plainly invalid because placed on the interval of eighty rods especially reserved by statute for the public. We thus have four frontages of 160 rods now located.

Of the shore frontage unlocated which may be appropriated by scrip, there remain six frontages of 160 rods each on the shore of the tract opened by the Executive order facing the bay and channel, and in addition about 2 3/4 miles of frontage distributed in eleven 8o-rod strips, subject to public use and the disposition of Congress. There is thus ample room for many other railroads to reach high-water mark on Controller Bay, and there to acquire tracts for terminals. Of the 12,800 acres, the entries in area have covered not more than 800 acres, and all the rest is available for scrip location or is reserved for the public under the limitations of the act.

But if is said that the three or four locations are the best ones on the bay with reference to the channel and harbor, and are opposite the deepest part. If this is true, it is equally true of the 80-rod reservations between and on each side of these locations. More than that, the channel extends 21 miles beyond these locations, and while it narrows some and shallows some, it still has a depth of from fifteen to thirty feet at low water and, if necessary, is easily capable of being dredged to greater depth and greater width because of the character of the bottom.

But there is a third reason why the opening of this tract to settlement and limited private appropriations cannot lead to a monopoly in the Controller Railway & Navigation Company or anyone else. The distance from the dry land—i.e., the shore land—the line of high-water mark—to the line of low-water mark is between two and three miles, and the distance to deeper water is about a mile farther, making it necessary, if a harbor is to be reached and used, to construct a viaduct or trestle three or four miles long from the shore to the channel. This tidal flat is owned by the United States, and the acquisition under the public-land laws of tracts on the shore abutting these tidal flats gives no right or title to those flats. This would be the law if the statute was silent on the subject; but not only the statute of 1898 (30 Stat. L., 409), but also the amending statute of 1903 (32 Stat. L., 1028) expressly imposes the restriction that no title or right can be obtained under the act in the shore of a navigable body of water.

The theory upon which it has been contended that the Controller Bay Railway & Navigation Company has practically acquired an exclusive appropriation of the harbor is that its anticipated ownership of the lands located by it and abutting on the shore will give it the right to build viaducts from these lands to the side of the deep channel, 31 miles away, and there establish wharves on the channel equal in frontage to that of the locations made on the shore, and that even if it does not itself build such wharves, it can prevent anyone else from enjoying access to the channel for the whole length of its frontage, say two miles. I have shown that even if this were the law, the public reservations and the unlocated frontage would prevent monopoly of the channel. But it is not the law.

The shore runs from high-water mark down to low-water mark. The owners of the upland, by virtue of the title they have acquired from the Government, do not acquire a vested right of access to the deep water and have no right or easement to build viaducts or trestles across the flats or wharves along the deep channel which Congress may not regulate or defeat.

The principle of law is settled by the decision of the Supreme Court of the United States in the case of Shively vs. Bowlby (152 U. S., 1). In that case it was decided that "grants by Congress of portions of the public lands within a territory to settlers thereon, though bordering on or bounded by navigable waters, convey of their own force no title or right below high-water mark" and do not impair the right either of the United States or of the future State, when created, to deal with the tidal land between high and low water mark at pleasure. It was there held that in the State of Oregon a person who took title to land acquired under an act of Congress while Oregon was a Territory, abutting on the tidal water of the Columbia River, could not object to a subsequent grant to another by the State of Oregon of the tidal lands upon which the land of the grantee under the act of Congress abutted.

It follows that no matter what the ownership of the upland abutting on the tidal flats, Congress has complete power to regulate the trestles and wharves which shall be built from the shore to the channel and along it, and to determine their character and the distance along the channel they may occupy, and in the absence of congressional action, the abutting lot owners can possibly acquire at best only a revocable license or permit from the War Department to put in such structures as that department will certify do not interfere with navigation.

Is congressional action wanting or has Congress given abutting lot owners any permission or easement of this kind? In only two instances has Congress conferred any such authority.

There is a provision of the act of May 14, 1898 (30 Stat. L., 409), providing a right of way for located railways in Alaska that reads as follows:

And when such railway shall connect with any navigable stream or tide water, such company shall have power to construct and maintain necessary piers and wharves for connection with water transportation, subject to the supervision of the Secretary of the Treasury.

But this is not a right incident to, or commensurate with, ownership of abutting land, but it is incident only to the location of a right of way of a railway. It secures to the railway only such trestles or viaducts to the wharves along the deep channel as the Secretary of the Treasury may deem necessary.

In the second place, there is a provision in the same act by which the Secretary of the Interior may permit the extension of piers and the construction of wharves from the 8o-rod frontages reserved to the public, to the navigable channel, but such piers and wharves must be open to public use for reasonable tolls to be fixed by the secretary (30 Stat. L., 413).

There is no provision or intimation in the statute that abutting landowners as such shall have an easement of this kind. The consequence is that even if the Controller Railway & Navigation Company were to obtain control of the entire frontage on the north shore—which, of course, it cannot do because of the 80-rod reservations—it still could not appropriate the channel or exclude anyone from its occupancy.

The whole contention that the executive order and the opening to settlement of the shore of Controller Bay grants a monopoly to the railway company rests on the claim that it has given an opportunity to persons using scrip to appropriate the control of the only available and practicable parts of the channel by the location of the scrip opposite to those parts. If now the location of the scrip opposite to the harbor gives no right to reach the harbor except as Congress may expressly give it, clearly the Controller Railway & Navigation Company has not the slightest opportunity for exclusive appropriation of the harbor facilities unless Congress shall by future act deliberately and voluntarily confer it.

I should be lacking in candor if I allowed it to be inferred that this third reason for saying that there is not the slightest danger of this order giving a monopoly of the channel to the Controller Railway & Navigation Company was present in my mind when I made the order. I was, of course, satisfied because of the other restrictions mentioned that no monopoly of the channel could follow, but I did not examine the law as to this point at that time. But the law is as I have stated it, and the consequences are inevitable.

The owners of the Controller Railway & Navigation Company realized the difficulty there might be in asserting a right as abutting owners to construct trestles and wharves on the tidal flats to the channel, and without even relying on the express privilege conferred on railway companies to apply to the Secretary of the Treasury for such permission, already quoted, went direct to Congress and secured from Congress an act which gives to the company expressly a right of way 200 feet wide across the tidal flats to the deep water; but this grant of an exclusive easement is carefully drawn and is accompanied and surrounded with every safeguard. Express power to repeal it is reserved to Congress, and the character and extent of the structures on the channels are placed in the control of the War Department upon recommendation of the Chief of Engineers. This easement was granted in an act passed March 4th of this year (36 Stat, at Large, p. 1360), and only after full examination by the Interstate Commerce Committee of the House, after recommendations by the War Department and the Interior Department and a clarifying discussion in the House of Representatives.

In the records of the War Department will be found one permit to construct a trestle from the Controller Bay shore to the channel, which, by extension, is still in force and will remain so until January 1, 1912. This was given to the Controller Bay & Bering Coal Railway Company, a different company from the Controller Railway & Navigation Company. It does not appear upon what authority such permit could be given by the War Department. Under the statute, the Secretary of the Treasury is charged with supervision over such a case, and before a lawful license can be granted his consent must be obtained (30 Stat. L., 409).

It follows from what has been said that the question of how the channel of Controller Bay shall be used is wholly in the control of Congress and nothing that has been done by the executive order or otherwise imperils that control. With the opportunity that any projected railway has to secure access to the harbor by locating its right of way to the line of the shore under supervision of the Secretary of the Treasury, or by application to Congress, the mere private ownership of land abutting on the shore is relatively unimportant. If a railway company thus secures access by trestle and wharf to the deep-water channel, it may conveniently establish its terminal yards, stations, warehouses, and elevators wherever in the eliminated tract it can secure title, and extended frontage on the tidal flats is of no particular advantage. As 12,000 acres in the tract eliminated still remain open to entry, the prospect of a monopoly in one railroad company is most remote. I submit to all fair-minded men who may have been disturbed over the charges made in respect to the executive order of October 28, 1910, that it has been demonstrated by the foregoing that no public interest has suffered from its issue; that great good may come from it; and that no dishonest or improper motive is needed to explain it. I might, therefore, stop here; but rather for the purpose of the moral to be drawn from them than to vindicate the order, I propose to consider the attacks upon the order that misinformation, hysteria, or rancor has prompted.

The order has been criticized because it was not in form a proclamation instead of an order. This was determined by Mr. Graves, the Forester, who, in letter of March 24, 1910, speaking of the proposed elimination, says to his assistant: "Action in this instance will be taken by executive order rather than by proclamation accompanied by diagram," and he gives the reasons in a note dated July 6, 1911:

When a comparatively small area is to be eliminated from a national forest the executive order is very commonly used instead of the proclamation, especially when other changes in boundaries may be made in a short time. The preparation of the diagrams which accompany a proclamation is necessarily expensive and laborious, and the issuance of repeated proclamations with their diagrams is avoided when an executive order will serve the purpose. In the present case reports were pending, recommending other changes in boundaries of the Chugach Forest, and since the proposed eliminations would be described without the use of a diagram, the executive order form of elimination was chosen.

The fact is that in law there is in effect no difference between a proclamation and an executive order. (Wood vs. Beach, 156 U. S., 548-550.) In practice the same publicity is given to each. Both are sent to the State Department for record. The custom of the State Department is to advertise neither a proclamation nor an executive order. Each is merely handed to the representatives of the press after being executed, and is sent to the large mailing list of the State Department. That course was here pursued in respect to the executive order of October 28, 1910. In accordance with custom, copies were sent to the Interior Department and the Agricultural Department, because they were especially concerned.

The charge has been made that this was a secret order, and that though it was made in October, 1910, no one knew of it until April, 1911. This is utterly unfounded. The statement of Mr. Vernon, the correspondent of the Post-Intelligencer, of Seattle, a newspaper of wide circulation among a people most interested in Alaska, shows that ten days before the order was made, news of the details of Ryan's application and the probability of its being granted was given wide publicity. It further appears from the records of the Interior Department that the evening the order was signed, October 28, 1910, a full notice of the issue of the order and its details was furnished by the department to all correspondents in the form of a news bulletin. Finally, the agent of the Associated Press certifies that at 7.23 P.M., October 28, 1910, there was sent out by that association to all its newspaper clients a telegram taken from a typewritten statement issued by the Interior Department, as follows:

WASHINGTON, October 28.—Approximately 12,800 acres of land in the Chugach National Forest, Alaska, have been restored by the President for disposition under appropriate land laws, according to information made public to-day by the Interior Department. These lands are situated on the coast line of Controller Bay in Southern Alaska near the Cunningham claims, and have been found upon examination to be of little value for forestry purposes.

It would be difficult to prepare an advertisement more informing to the public or more likely to attract the attention of all likely to desire acquisition of land on Controller Bay. On the 29th, the Chief Forester sent a telegram making a similar announcement to his district forester at Portland, Ore.

The order has been attacked on the ground that it did not contain a provision delaying its taking effect for thirty days after its local publication as orders restoring land to settlement by homesteaders frequently do. An examination of the record furnishes an explanation of this feature of the order as made. When in October the two departments had agreed, with my acquiescence, that the order should be an elimination of only 320 acres, an order describing the 320 acres directing its restoration to settlement and containing the usual provision postponing its taking effect thirty days was prepared in the Forestry Bureau and forwarded to the Interior Department. There it was deemed wiser to spread on the face of the order a specific declaration that it was made to afford terminals for the Controller Railway & Navigation Company, and as no one else was expected to intervene and take up any part of the eliminated tract, the restoration was made immediate.

The form thus amended was submitted to the Secretary of Agriculture, who expressed his preference for the immediate restoration order through his solicitor's memorandum on the face of the order, as follows:

Mr. CLEMENTS,

[Assistant Attorney in the Interior Department:]

We think this O. K. The Secretary says it is the direct way, and appeals to him.

GEO. P. MCCABE.

The idea of the Secretary doubtless was that the short form of order was preferable because on its face it was directly indicative of the purpose to secure an opportunity to the railway company by proper entry to settle on the land eliminated, and as no one else was expected to intervene no postponement was needed. Accordingly when the case came for decision in the Cabinet, the order was without any postponement clause. This was the form sent me for my signature by the Acting Secretary of the Interior Department.

When I directed the striking out of the reference to the railway company and the enlargement of the area from 320 acres to 12,800 acres, the form of the order in its provision for immediate restoration was not changed. I have no doubt that this was the reason why the order issued took the form it did. Had the postponement clause been suggested, I would, doubtless, have directed it to be embodied in the order. But the event has proven that it was really not important in this case, for in now nearly nine months only the Controller Railway & Navigation Company has made any scrip entries on the eliminated tract and this, although 12,000 acres and about two and one half miles of water front still remain open to entry, and there are several different railway companies in addition to the Controller Railway & Navigation Company that had filed locations for rights of way in the vicinity in the last two years who have had in the last nine months the fullest notice of their opportunity if they wished to enter on this land.

Before closing, I desire to allude to a circumstance which the terms of this resolution make apt and relevant. It is a widely published statement attributed to a newspaper correspondent that in an examination of the files of the Interior Department a few weeks ago a postscript was found attached to a letter of July 13, 1910, addressed by Mr. Richard S. Ryan to Secretary Ballinger—and in the present record —urging the elimination of land enough for terminals for the Controller Railway & Navigation Company. The postscript was said to read as follows:

DEAR DICK:

I went to see the President the other day. He asked me who it was I represented. I told him, according to our agreement, that I represented myself. But this didn't seem to satisfy him. So I sent for Charlie Taft and asked him to tell his brother, the President, who it was I really represented. The President made no further objection to my claim.

Yours, Dick.

The postscript is not now on the files of the department. If it were, it would be my duty to transmit it under this resolution. Who is really responsible for its wicked fabrication if it ever existed, or for the viciously false statement made as to its authenticity, is immaterial for the purposes of this communication. The purport of the alleged postscript is, and the intention of the fabricator was, to make Mr. Richard S. Ryan testify through its words to the public that although I was at first opposed in the public interest to granting the elimination which he requested, nevertheless through the undue influence of my brother, Mr. Charles P. Taft, and the disclosure of the real persons in interest, I was induced improperly and for the promotion of their private gain, to make the order.

The statement in so far as my brother is concerned—and that is the chief feature of the postscript—is utterly unfounded. He never wrote to me or spoke to me in reference to Richard S. Ryan or on the subject of Controller Bay or the granting of any privileges or the making of any orders in respect to Alaska. He has no interest in Alaska, never had, and knows nothing of the circumstances connected with this transaction. He does not remember that he ever met Richard S. Ryan. He never heard of the Controller Railway & Navigation Company until my cablegram of inquiry reached him, which, with his answer, is in the record.

Mr. Ballinger says in a telegram in answer to my inquiry, both of which are in the record, that he never received such a postscript and that he was in Seattle on the date of July 13th, when it was said to have been written.

Mr. Richard S. Ryan, in a letter which he has sent me without solicitation, and which is in the record, says that he never met my brother, Mr. Charles P. Taft, and that so far as he knows, Mr. Charles P. Taft never had the slightest interest in Controller Bay, in the Controller Railway & Navigation Company, or in any Alaskan company, that he utterly denies writing or signing the alleged postscript. The utter improbability of his writing such a postscript to Mr. Ballinger at Washington, when the latter was away for his vacation for two months, must impress everyone.

The fact is that Mr. Ballinger never saw the letter of July 13, 1910, to which this postscript is said to have been attached. It was sent to me by Mr. Carr, Secretary Ballinger's private secretary, at Beverly, on July 14th—the next day. I read the letter at Beverly in August with other papers and sent them to the White House. It was placed upon the White House files and remained there until April 22, 1911, when it was, by request of Secretary Fisher, for use in connection with his answer to a Senate inquiry, returned to the Interior Department, and it was after this that the correspondent is said to have seen the letter with the postscript attached. Mr. Carr saw no such postscript when he sent the letter to me. I did not see it when I read it. No one saw it in the Executive Office, but it remained to appear as a postscript when it is said that the correspondent saw the letter in April or May on the files of the Interior Department. All others were denied the sight.

The person upon whose statement the existence of what has been properly characterized as an amazing postscript is based, is a writer for newspapers and magazines, who was given permission by Secretary Fisher, after consultation with me, to examine all the files in respect to the Controller Bay matter—and this under the supervision of Mr. Brown, then private secretary to the Secretary of the Interior. After the examination, at which it is alleged this postscript was received from the hand of Mr. Brown, the correspondent prepared an elaborate article on the subject of this order and Controller Bay, which was submitted to Mr. Fisher, and which was discussed with Mr. Fisher at length, but never in the conversation between them or in the article submitted did the correspondent mention the existence of the postscript. Mr. Brown states that there was no such postscript in the papers when he showed them to the correspondent and that he never saw such a postscript. Similar evidence is given by Mr. Carr and other custodians of the records in the Interior Department.

Stronger evidence of the falsity and maliciously slanderous character of the alleged postscript could not be had. Its only significance is the light it throws on the bitterness and venom of some of those who take active part in every discussion of Alaskan issues. The intensity of their desire to besmirch all who invest in that district, and all who are officially connected with its administration, operates upon the minds of weak human instruments and prompts the fabrication of such false testimony as this postscript. I dislike to dwell upon this feature of the case, but it is so full of a lesson that ought to be taken to heart of every patriotic citizen that I cannot pass it over in silence.

When I made this order, I was aware that the condition of public opinion in reference to investments in Alaska, fanned by charges of fraud—some well founded and others of an hysterical and unjust or false character—would lead to an attack upon it and to the questioning of my motives in signing it. I remarked this when I made the order, and I was not mistaken. But a public officer, when he conceives it his duty to take affirmative action in the public interest, has no more right to allow fear of unjust criticism and attack to hinder him from taking that action than he would to allow personal and dishonest motives to affect him. It is easy in cases like this to take the course which timidity prompts, and to do nothing, but such a course does not inure to the public weal.

I am in full sympathy with the concern of reasonable and patriotic men that the valuable resources of Alaska should not be turned over to be exploited for the profit of greedy, absorbing, and monopolistic corporations or syndicates. Whatever the attempts which have been made, no one, as a matter of fact, has secured in Alaska any undue privilege or franchise not completely under the control of Congress. I am in full agreement with the view that every care, both in administration and in legislation, must be observed to prevent the corrupt or unfair acquisition of undue privilege, franchise, or right from the Government in that district. But everyone must know that the resources of Alaska can never become available either to the people of Alaska or to the public of the United States unless reasonable opportunity is granted to those who would invest their money to secure a return proportionate to the risk run in the investment and reasonable under all the circumstances.

On the other hand, the acrimony of spirit and the intense malice that have been engendered in respect of the administration of the government in Alaska and in the consideration of measures proposed for her relief and the wanton recklessness and eagerness with which attempts have been made to besmirch the characters of high officials having to do with the Alaskan government, and even of persons not in public life, present a condition that calls for condemnation and requires that the public be warned of the demoralization that has been produced by the hysterical suspicions of good people and the unscrupulous and corrupt misrepresentations of the wicked. The helpless state to which the credulity of some and the malevolent scandal-mongering of others have brought the people of Alaska in their struggle for its development ought to give the public pause, for until a juster and fairer view be taken, investment in Alaska, which is necessary to its development, will be impossible, and honest administrators and legislators will be embarrassed in the advocacy and putting into operation of those policies in regard to the Territory which are necessary to its progress and prosperity.

WILLIAM H. TAFT.

The White House, July 26, 1911.