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Duke City Lumber Co. v. Butz

Citation: 5 ELR 20080
No. No. 2152-72, 382 F. Supp. 362/7 ERC 1104/(D.D.C., 08/28/1974)

The court holds that several large lumber companies have standing under NEPA to challenge the 1971 small business timber set-aside program, but rules that the program does not constitute major federal action nor significantly affect the quality of the human environment, and therefore does not require preparation of a NEPA impact statement. Plaintiffs alleged an injury in the form of damage to the environment in which they work and upon which they depend for their livelihood, and this interest is arguably within the zone of interest protected by the statute. The 1971 set-aside program is not a major federal action because it represents merely a technical change from an earlier set-aside program, and does not significantly affect environmental quality since it does not change either the manner or volume of timber harvested each year. The court also rules that the Small Business Administrator's decision to institute the set-aside program had a rational basis and was within his statutory authority, that the program does not violate the Fifth Amendment and other federal statutes, and that plaintiffs were not denied administrative due process.

Counsel for Plaintiffs
Angelo A. Iadarola
Pierre J. LaForce
Philip A. Nacke
Jerry R. Goldstein
Wilkinson, Cragun & Barker
1735 New York Ave., N.W.
Washington, D.C. 20006

Counsel for Defendants
Earl J. Silbert U.S. Attorney
Arnold T. Aikens
Ann S. DuRoss
Paul M. Tschirhart Asst. U.S. Attorneys
U.S. Courthouse
3rd and Constitution Ave., N.W.
Washington D.C. 20001

Eric S. Benderson Office of the General Counsel
Small Business Administration
1441 L Street, N.W., Room 716
Washington, D.C. 20416

Robert M. Simmons Office of the General Counsel
Natural Resources Division
Department of Agriculture
Washington, D.C. 20250

Mark P. Schlefer
Richard S. Salzman
William H. Fort
Kominers, Fort, Schlefer & Boyer
500 Tower Building
1401 K Street, N.W.
Washington, D.C. 20005

H. Robert Halper
Philip R. Hochberg
Terence P. Boyle
O'Connor & Hannan
Suite 600
1747 Penn. Ave., N.W.
Washington, D.C. 20006