The opinion of the court was delivered by: LINDBERG
Appellant Gregg was convicted by the United States Commissioner, acting pursuant to 18 U.S.C., Section 3401, for an alleged violation of a regulation of the Secretary of Agriculture, namely 36 C.F.R., Section 271.75, insofar as it prohibited the unauthorized landing of aircraft in National Forest Wilderness, in violation of 16 United States Code, Section 551. He appeals to this Court under Rule 4, Rules for Trial of Petty Offenses before United State Commissioners.
The defendant noted four grounds in his Notice of Appeal. In substance, they are as follows:
1. The Wilderness Act specifically permits continued landing of aircraft at points in the Wilderness Area where such uses "have already become established * * *."
3. The powers given to the Secretary of Agriculture to impose restrictions on the landing of aircraft in Wilderness Areas do not include the power to prohibit such landings entirely.
4. The regulations of the Secretary regarding the landing of aircraft contain no penalty provision, and none is provided by law, so that they cannot be construed as criminal regulations.
The Wilderness Act of 1964 provides, Title 16 United States Code, Section 1133(a), that it is supplementary to the purposes for which the National Forests are established and administered.
Section 1133(c) of the Act, so far as material to the matter before the Court, states that "except as necessary to meet minimum requirements for the administration of the area for the purpose of this chapter (including measures required in emergencies involving the health and safety of persons within the area), there shall be * * * no landing of aircraft * * * within any such area."
Thereafter, in Section 1133(d)(1) it is provided that the landing of aircraft may, not shall, be permitted where such use has become established.
After the Act was passed there was an initial period during which the old regulations, which permitted the landing of aircraft in areas where it had become established, remained in effect. Later the Secretary promulgated the new regulation, 36 Code of Federal Regulations, Section 251.75. This regulation was passed under the authority allegedly granted by 16 United States Code, Section 551, and the regulation, 36 Code of Federal Regulations, Section 251, refers to this authority. The regulation prohibits the landing of aircraft in Wilderness Areas carved out of National Forests except where permitted by the Wilderness Act, and adds that the Chief of the Forest Service may permit landing of aircraft at places where this use was established prior to the Act.
As I interpret the Wilderness Act, it prohibits the landing of aircraft in the Wilderness Area except where required for administration and certain emergencies. In addition, the Act gives the Secretary discretion to permit landings to continue where the practice has existed in the past without requiring him to give such permission.
With respect to the penalty provisions under which this prosecution has proceeded, the Secretary, as already noted, promulgated a regulation under his alleged Title 16 U.S.C., Section 551, power, prohibiting the landing of aircraft in the Wilderness Areas carved out of the National Forests except as ...