11 ELR 20679 | Environmental Law Reporter | copyright © 1981 | All rights reserved
Southern Appalachian Multiple Use Council v. BerglandNo. C-80-1 (W.D.N.C. April 16, 1981)
The court rules that the Secretary of Agriculture may recommend national forest lands east of the 100th meridian for designation as wilderness study areas and manage them as wilderness pursuant to the Wilderness Act and the Eastern Wilderness Act. The court finds that although Congress has exclusive authority to designate wilderness and wilderness study areas in national forests east of the 100th meridian, the Eastern Wilderness Act allows the Secretary to recommend to Congress that certain areas be classified as wilderness study areas and gives the Secretary the responsibility to manage these areas as wilderness pending congressional action on the recommendations. Regarding the claim of one plaintiff, however, the court holds that by depriving plaintiff of access to his private property, which is completely surrounded by the disputed lands, the Secretary has deprived plaintiff of his private property without due process of law. Therefore, the Secretary must reopen the access road to plaintiff's land, or the court will order the Secretary to return these lands to multiple-use management.
Counsel for Plaintiffs
Hamilton C. Horton
Whiting, Horton & Hendrick
450 NCNB Plaza, Winston-Salem NC 27102
S. Jerome Crow
Adams, Hendon, Carson & Crow
P.O. Box 7246, Asheville NC 28807
Wayne T. Elliot
Southeastern Legal Foundation
1800 Century Blvd. NE, Suite 950, Atlanta GA 30245
Counsel for Defendant
Harold M. Edwards, U.S. Attorney; Max O. Cogburn Jr., Ass't U.S. Attorney
P.O. Box 132, Asheville NC 28802
Thomas J. Riley, Estelle H. Rogers
Land and Natural Resources Division
Department of Justice, Washington DC 20530
Counsel for Intervenor-Defendant Sierra Club
Howard I. Fox, Frederick S. Middleton III
Sierra Club Legal Defense Fund, Inc.
Suite 600, 1424 K St. NW, Washington DC 20005
James S. Dockery Jr.
Petree, Stockton, Robinson, Vaugn, Glaze & Maready
1001 N. 4th St., Winston-Salem NC 27102
Counsel for Amicus Curiae American Farm Bureau Fed'n
Allen A. Lauterbach, General Counsel; Richard L. Krause, Jerome J. Werderitch
American Farm Bureau Fed'n, 225 Touhy Ave., Park Ridge IL 60068
[11 ELR 20680]
Memorandum of Decision
The Plaintiffs seek a judgment of this Court declaring that the Defendant, Secretary of Agriculture of the United States has failed to comply with the provisions of the Eastern Wilderness Act and that the Secretary be enjoined from conducting any additional study or designation of tracts of the National Forest east of the 100th meridian as wilderness areas except in accordance with the Act. They further seek a mandatory injunction requiring the Secretary to forward forthwith his recommendations to the Congress for its decision as to certain tracts of the National Forest in Western North Carolina which have not been nominated by him for Congressional Wilderness designation, but rather have been withheld administratively in a "Further Planning" status, the effect of which is the equivalent of a de facto "Wilderness" status. In the alternative, the Plaintiffs seek an order that, pending Congressional determination of their status, these tracts or areas be managed as they were before the initiation of the Roadless Area Review and Evaluation Program, designated as "RARE II."
The Defendant Secretary answered denying any failure to comply with the provisions of the Eastern Wilderness Act and moved to dismiss the action. On June 3, 1980 the Court permitted the Sierra Club to intervene as a Detendant pursuant to Rule 24(b), Federal Rules of Civil Procedure.
All parties have moved for summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure and the Court conducted a hearing on said motions in Asheville on January 13, 1981. After consideration of the pleadings, affidavits, stipulation of facts, admissions, briefs and arguments the Court concludes that there is no genuine issue as to any material fact and the matter is ripe for summary judgment. The Court now enters its findings and conclusions.
The Southern Appalachian Multiple Use Council, Inc., is a North Carolina non-profit corporation with its principal office in the Western District of North Carolina. It brings this action on behalf of its members, officers and supporters alleging they have been injured by the wrongful acts of the Defendant Secretary of Agriculture. Its members include representatives from the forest products industry, such as lumber companies and individuals working in the lumber business. The corporation alleges that its basic objectives are to promote the expansion and development of the resource base for the continued production of forest corps, to promote the multiple-use principle of all forest lands and to work with all agencies interest in land-use planning in order to further these goals. Various members of the corporation have conducted business with the United States Forest Service in Western North Carolina and have an economic and professional interest in preserving the living and growing timber in the National Forests of this area.
The Save America Club is a North Carolina non-profit corporation representing approximately 200 members in this State. It brings the action on behalf of its members, officers and supporters who are injured by the alleged wrongful conduct of the Secretary. Its members include those who are concerned with the economic prosperity of their state, the sound and environmentally proper mining of her mineral resources, and continued use of the National Forests.
Will Orr is a 90-year old citizen and resident of Graham County, North Carolina. Since the Civil War, he and his forebears have owned lands which are now surrounded by a "RARE II" area. Vehicular access to his land has now been denied by the Forest Service thereby taking his land without due process and depriving him of the full use and enjoyment of his ancestral lands.
Dwight Southard is a citizen and resident of Macon County, North Carolina, and operates a small logging and timber hauling business. He and his employees have suffered economically and will continue to be harmed by the Secretary's withdrawal of forest lands from harvesting under the "RARE II" program.
Clay Harris is a citizen and resident of Macon County, North Carolina. He is an ardent sportsman who has hunted and fished on Forest lands since childhood. He is disabled because of the loss of a leg and necessarily must use vehicles for access to the Forests. Because of the "RARE II" program he is denied access to the areas where he has hunted and fished for a lifetime.
Robert S. Bergland, the Defendant, is Secretary of the United States Department of Agriculture. He is responsible for the administration of lands under the Forest Service and for their proper use and administration under the various acts of the Congress.
The Sierra Club, the intervenor-Defendant, is a nationalconservation organization which has more than 183,000 members who live and work in every part of the United States. It is dedicated to promoting the appreciation and preservation of forests, waters, wildlife, and wilderness everywhere in the United States. For almost 90 years the Club has devoted time, energy and resources of its organization to the protection of wilderness lands in this country.
By order of this Court dated September 25, 1980, the American Farm Bureau Federation and North Carolina Farm Bureau Federation filed an amicus curiae brief. The American Farm Bureau Federation is a general not-for-profit farm organization which has as its purpose the promotion, protection and representation of the economic, social, business and educational interest of farmers and ranchers in the United States. The North Carolina Farm Bureau Federation is a general not-for-profit farm organization which has as its purpose to develop, foster, promote and protect programs for the general welfare of farm people of North Carolina.
[11 ELR 20681]
Contentions of the Parties
The Plaintiffs seek a declaratory judgment and a mandatory injunction against the Secretary of Agriculture as a result of a nationwide administration Roadless Area Review and Evaluation Process (Acronym: RARE II) under which some 26 million acres of National Forest Service lands have been withdrawn from harvsting pending a determination either by Congress or the Defendant as to their suitability for inclusion in the National Wilderness Preservation System.
In North Carolina 20 areas comprising approximately 83,000 acres similarly have been withdrawn from availability for harvest either because they have been recommended to the President (and thence to Congress) for designation as wilderness, or because they have been withdrawn administratively by the Secretary, ostensibly for "Further Planning."
The Plaintiffs contend that they have been damaged variously by RARE II as follows:
Members of the Southern Appalachian Multiple Use Council have seen their cost of operation raised $45.00 to $50.00 per thousand board feet; members of The Save America Club are forestalled in their efforts to develop the mineral resources lying beneath the forsts; Will Orr finds the road to his family lands gated and locked and access therefore denied; Clay Harris has lost access to his favorite deer hunting stand near the Bear Gap Road; and Dwight Southard, a small contract logger, who formerly was kept busy in Macon and Clay Counties must now send his trucks 140 miles each day to log in Georgia, at a 30% increase in his cost of doing business.
While this action focuses on seven areas in Western North Carolina, the Plaintiffs rely principally on the Eastern Wilderness Act as the basis for their demand that the Secretary forward the withdrawn "Further Planning" areas forthwith to the Congress for its determination whether they may properly be studied for inclusion within the National Wilderness Preservation System.
The Defendant's opposition to Plaintiffs' motion for summary judgment is not based on the contention that material facts are in dispute. Rather, he contends the applicable and controlling law dictates that the Defendant — not the Plaintiffs — is entitled to judgment that, as a matter of law, the RARE II process comports with the relevant land management planning laws, particularly the Eastern Wilderness Act, P.L. 93-622, (16 U.S.C.A. § 1132). The Defendant further contends that underthe appropriate standard of judicial review, Plaintiffs have not established that the Defendant's procedures have been arbitrary, capricious, or an abuse of his discretion.
The Defendant advances two arguments for his position in this matter. First, he contends that neither the Eastern Wilderness Act nor any other statute derogates from his broad discretionary authority to manage the National Forests, including his responsibility to study areas (other than those designated in the Eastern Wilderness Act) for possible inclusion in the National Wilderness Preservation System. Thus, he contends that, the RARE II program, an inventory and evaluation of roadless areas in order to determine their most appropriate uses, does not violate the Eastern Wilderness Act. Secondly, the Defendant contends that he has not abused the discretion accorded him by these statutes in managing the areas at issue in this case so as to preserve their wilderness potential until final action is taken.
The Congress in 1897 set aside some public lands as national forests and set forth the purposes of such areas. Among other things, the Congress provided:
No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States . . . .
(30 Stat. 34) 16 U.S.C.A. § 475.
In 1960, the Congress supplemented the original Act by adopting the Multiple-Use Sustained-Yield Act of 1960, P.L. 86-517, 74 Stat. 215, 16 U.S.C.A. §§ 528-531. Section 528 reads in part as follows:
It is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes. The purposes of sections 528-531 of this title are declared to be supplemental to, but not in derogation of, the purposes for which the national forests were established as set forth in section 475 of this title.
Congress has provided that national forests shall be under the jurisdiction of the Secretary of Agriculture and he is empowered by law to determine when timber should be cut and removed from such forests. The Acts of Congress require the Secretary to consider the multiple use and sustained yield of such forests and his administrative decision can only be reviewed by the Court when his decisions are in contravention of the Act.
The concept of preserving portions of the national forests in their natural state by administratively designating them as "wilderness," "wild," "canoe" or "primitive areas" began about 1924 and was recognized by the Congress in 1960 when it adopted the Multiple-Use Sustained-Yield Act. The Act specifically provided:
In the administration of the national forests due consideration shall be given to the relative values of the various resources in particular areas. The establishment and maintenance of areas of wilderness are consistent with the purpose and provisions of sections 528 to 531 of this title.
P.L. 86-517, 74 Stat. 215, 16 U.S.C.A. § 529.
In 1964 the Congress became concerned about the matter and enacted the National Wilderness Act, 16 U.S.C.A. § 1131, establishing the National Wilderness Preservation System and defined for the first time a wilderness area. The Act provided:
For this purpose there is hereby established a National Wilderness Preservation System to be composed of federally owned areas designated by Congress as "Wilderness Areas," and these shall be administered for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas, the preservation of their wilderness character, and for the gathering and dissemination of information regarding their use and enjoyment as wilderness; and no federal lands shall be designated as "wilderness areas" except as provided for in this chapter or by a subsequent Act.
The Congress specifically defined a wilderness area as follows:
A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean in this chapter an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.
16 U.S.C.A. § 1311(c).
Prior to the passage of the Wilderness Act, the question of what areas should be designated as wilderness, wild or primitive and what uses might be made of such areas was apparently left to the discretion of the Secretary of Agriculture and the Forest Service. One of the major purposes of the Wilderness Act was to remove a great deal of this absolute discretion from the Secretary and Forest Service by the Congress reclaiming its ultimate responsibility for wilderness designation. Parker v. United States, 390 F. Supp. 593 [1 ELR 20522] (D. Colorado 1970).
The Congress, concerned over the mass of regulations, laws [11 ELR 20682] and agencies exercising jurisdiction over the uses of public lands, created in 1964, the same year the Wilderness Act was passed, the Public Land Law Review Commission to review and recommend changes in our laws and policies. 43 U.S.C.A. § 1391. This Commission recommended in 1970, among other things, that:
Congress assert its constitutional authority by enacting legislation reserving unto itself exclusive authority to withdraw or otherwise set aside public lands for specified limited purpose uses and delineating specific delegation of authority to the Executive as to the types of withdrawals and set asides that be effected without legislative action.
ONE-THIRD OF THE NATION'S LAND: REPORT TO THE PRESIDENT AND CONGRESS BY THE UNITED STATES PUBLIC LAND LAW REVIEW COMMISSION, June 1970.
On January 3, 1975 the Congress enacted the Eastern Wilderness Act, 16 U.S.C.A. § 1132, Note, et seq. (88 Stat. 2096, P.L. 93-622) which designated certain areas of the National Forests east of the 100th meridian as wilderness areas and added them to the National Wilderness Preservation System. In addition the Congress designated certain areas as "wilderness study areas" and directed and empowered the Secretary of Agriculture to review each such area as to its suitability or nonsuitability for preservation as wilderness and report his findings to the President. The Act further provides that the President shall advise the United States Senate and House of Representatives of his recommendation with respect to the designation as wilderness of each area on which the review has been completed. Subsection (c) of the Act provides that "Reviews shall be completed and the President shall make his recommendations to Congress within five years after enactment of this Act."
One area of the Pisgah National Forest, which is located in this district and is a part of the controversy between these parties, was included in the "wilderness study areas" designated by the Congress in this Act. The Secretary had completed his review of this area at the time of the hearing on the summary judgment motions but the President had not reported to Congress even though the five year period had expired.
The real thrust of this law suit is the challenge of the Plaintiffs to the assumed power and authority of the Secretary of Agriculture to designate additional areas of the National Forest as study areas and to manage such areas during the period of study as wilderness areas. The Secretary has exercised such power and authority in this district and has designated several areas as study or planning areas and has stopped timber cutting, mining, fishing, hunting and other multiple uses set forth under the Multiple-Use, Sustained-Yield Act of 1960, (74 Stat. 215, 16 U.S.C.A. §§ 528-531), within such areas pending the completion of his review.
The Plaintiffs contend that by the enactment of the Wilderness Act and the Eastern Wilderness Act Congress withdrew whatever authority it had previously extended to the Secretary to designate wilderness areas and wilderness study areas.
The Secretary admits that he does not now have the power and authority to designate an area as wilderness and add it to the National Wilderness Preservation System but that he does have a mandate from the Congress to designate additional study areas and to manage such areas as wilderness pending his recommendation to the President and the action of the Congress. He contends that such power is contained in the Wilderness Act and the Eastern Wilderness Act.
These Acts must be examined to determine what authority, if any, the Congress has conferred upon the Secretary relative to the selection of wilderness study areas and how such areas are to be managed during such period of review.
Subsection (d) of the Eastern Wilderness Act provides that
Congress may, upon the recommendation of the Secretary of Agriculture or otherwise, designate as study areas, national forest system lands east of the 100th meridian other than those areas specified in subsection (b) of this section, for review as to suitability or nonsuitability for preservation as wilderness. Any such area subsequently designated as a wilderness study area after the enactment of this Act shall have its suitability or nonsuitability for preservation as wilderness submitted to Congress within ten years from the date of designation as a wilderness study area.
It therefore appears that the Congress in furtherance of thepurposes of the Wilderness Act enacted the Eastern Wilderness Act and designated certain areas of the National Forests east of the 100th meridian as wilderness areas and added said areas to the National Wilderness Preservation System and further designated other areas of such Forest lands as wilderness study areas. The Act provides that Congress may designate as study areas additional areas of Forest lands east of the 100th meridian for review as to suitability or nonsuitability for preservation as wilderness. Any such additional areas designated as study areas by the Congress shall have their suitability or nonsuitability for preservation as wilderness submitted to Congress within ten years from the date designated as a study area. Subsection (d) provides that the Congressional designation may be made upon the recommendation of the Secretary of Agriculture or otherwise. It therefore appears that Congress directed the Secretary to study additional areas to determine their wilderness qualities and to make recommendations upon completion of such studies. Section 6(a) of the Act provides for the management of such areas, that is, areas designated as wilderness areas and those designated as study areas, and the Secretary is charged with such responsibility.
Sec. 6.(a) except as otherwise provided by this Act, the wilderness areas designated by or pursuant to this Act shall be managed by the Secretary of Agriculture in accordance with the provisions of the Wilderness Act. The wilderness study areas designated by or pursuant to this Act shall — be managed by the Secretary of Agriculture so as to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System until Congress has determined otherwise, except that such management requirement shall in no case extend beyond the expiration of the third succeeding Congress from the date of submission to the Congress of the President's recommendations concerning the particular study area.
There can be no doubt that Congress directed the Secretary of Agriculture to manage the wilderness study areas designated by the Act in accordance with the provisions of the Wilderness Act so as to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System until Congress has determined otherwise. It appears from any reasonable interpretation of §§ 4(d) and 6(a) that the Congress intended that the Secretary of Agriculture play a vital role in the study and recommendation of areas to be included in the study areas as well as the wilderness areas and to manage such areas as wilderness areas until the Congress acts. It is also a reasonable interpretation of these sections that the Congress intended to direct and empower the Secretary to designate as study areas other areas which he thinks will qualify and should be considered as wilderness areas and to manage such areas as wilderness areas until Congress acts upon his recommendations.
The Secretary in compliance with the provisions of the Wilderness Act conducted an inventory of National Forest lands to determine which lands were roadless and undeveloped and were 5,000 acres or more in size, (or, though smaller, were eligible for consideration as wilderness because of their proximity to existing wilderness or primitive areas). In 1972 RARE I, Roadless Area Review and Evaluation, was initiated for the purpose of identifying those roadless and undeveloped areas within the National Forest System which should be further evaluated for addition to the National Wilderness Preservation System established by § 2(a) of the Wilderness Act of 1964, 16 U.S.C.A. § 1331(a) as well as those areas which should continue to be managed for their other resource values.
In early 1977 the Secretary initiated RARE II and proceeded to identify those roadless and undeveloped areas within National Forest lands which were thought to be suitable for inclusion in the National Wilderness Preservation System and allocated all such areas to one of three categories: (1) areas to be recommended for [11 ELR 20683] wilderness designation by the Congress (wilderness); (2) areas to be allocated for multiple uses other than wilderness (nonwilderness), or (3) areas to be allocated for "further planning."
On the basis of the RARE II inventory and the Final Environmental Statement prepared for the RARE II program the Secretary recommended to the President and the President to the Congress on May 2, 1979 that 631 inventoried roadless areas, totalling 15.5 million gross acres, be designated as components of the National Wilderness Preservation System; that 1,925 inventoried roadless areas, totalling 10.8 million gross acres be allocated to the "Further Planning" designation.
In North Carolina the final RARE II inventory constituted 207,000 acres as follows:
The parties stipulated that all the areas studied by the Secretary in North Carolina under RARE II for suitability or nonsuitability for inclusion in the National Wilderness Preservation System, except Craggy Mountain Wilderness Study Area, have been studied without congressional designation of them as Wilderness Study Areas under § 4(d) of the Eastern Wilderness Act.
|Further Planning||23,941 acres|
The Court finds and concludes that by the enactment of the Wilderness Act the Congress reclaimed its power and authority over wilderness areas of our public lands. It specifically defined a wilderness area and established the National Wilderness Preservation System. It reserved unto itself the sole authority to designate areas of the public lands to be set aside and included in such system. The Act provided that "no Federal lands shall be designated as 'wilderness areas' except as provided for in this chapter or by subsequent Act."
By a subsequent Act, that is, the Eastern Wilderness Act, the Congress designated additional "wilderness areas" making them components of the National Wilderness Preservation System. It also designated certain areas as "Wilderness Study Areas" and directed the Secretary of Agriculture to review such areas as to their suitability or nonsuitability for preservation as wilderness and report his findings to the President. In turn the President was required to make his recommendations to the Congress within five years from the enactment of the Act.
It is clear that Congress intended by this Act to reserve unto itself the sole authority to designate study areas of the National Forest lands east of the 100th meridian. The Act provides that the "Congress may, upon recommendation of the Secretary or otherwise, designate as study areas, national forest system lands east of the 100th meridian other than those areas specified in subsection (b) of this section, for review as to suitability or nonsuitability for preservation as wilderness."
The Act provides that the wilderness areas designated by or pursuant to the Act shall be managed by the Secretary of Agriculture in accordance with the provisions of the Wilderness Act. The wilderness study areas designed by or pursuant to the Act shall be managed by the Secretary of Agriculture so as to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System until Congress has determined otherwise, except that such management requirement shall in no case extend beyond the expiration of the third succeeding Congress from the date of the submission to the Congress of the President's recommendation concerning such areas.
The Court finds and concludes that the Secretary of Agriculture has no authority to designate areas of the National Forest east of the 100th meridian as wilderness areas or as wilderness study areas. Whatever authority the Secretary had with reference to the designation of such areas was revoked by the Wilderness Act and the Eastern Wilderness Act. Congress has reserved this power and authority unto itself. The Eastern Wilderness Act does provide that the Secretary may recommend to the Congress areas to be designated as study areas for review as to their suitability or nonsuitability for preservation as wilderness. Since the Act provides that the Secretary shall manage as wilderness areas the study areas designated by Congress until the Congress determines whether to designate the areas as wilderness areas, it follows that Congress intended to authorize the Secretary to manage as wilderness areas those areas which the the judgment of the Secretary met the requirements for wilderness areas and which he intends to recommend to the Congress as study areas. The provision for the Secretary's recommendation to the Congress would be meaningless if the Secretary did not have the authority to protect the wilderness characteristics of the area pending the congressional action on the recommendation.
The Court therefore concludes that the Secretary of Agriculture had the authority to manage the area entitled "Craggy Mountain Wilderness Study Area" and described in § 4(b)(7) of the Eastern Wilderness Act as a wilderness area until January 3, 1980, which was five years from the date of the enactment of the Act. The Secretary was in violation of the Act to continue his review of the area as wilderness after January 3, 1980. However, since Congress designated the area as a wilderness study area the Secretary must continue to manage it as wilderness until the "Congress has determined otherwise" or until the time limit expires as provided in § 6(a) of the Act. Therefore the Plaintiffs would not be entitled to any relief as to this area at this time.
The Court concludes that the Secretary of Agriculture has the authority to recommend to the Congress areas of the National Forest lands east of the 100th meridian for designation as wilderness study areas and that in order to perform such duty he would have a reasonable time to study such areas to determine whether they qualify under the definition set forth in the Wilderness Act. The Court further concludes that the Secretary would have the authority to manage such areas as wilderness during such study and until the Congress acts upon the recommendation in accordance with the Eastern Wilderness Act. Thus the Court cannot grant the Plaintiffs' demand for declaratory relief.
While it appears that the Secretary has set aside an inordinate number of areas and acres for study and has managed them as wilderness areas far longer than appears necessary there has been no showing that his actions have been arbitrary, capricious, or in abuse of his discretion. There can be no doubt that a through study of an area to determine its wilderness characteristics would take a considerable amount of time but the Secretary should be reminded that he is called upon only for a recommendation to the Congress that an area be set aside as a wilderness study area. The legislative intent seems to be that the detailed study will begin after Congress has designated an area as a wilderness study area. Surely the Congress never intended that a detailed study of an area be conducted by the Secretary before the recommendation and that it be repeated after the designation. If the Secretary is placing such interpretation on the statute then his conduct and action might be found to be arbitrary, capricious, or in abuse of his discretion.
Since the statute does not place a limitation upon the Secretary for the completion of his study prior to his recommendation of an area for study the law would require the act to be performed within a reasonable time. The Court would be compelled to conclude that a reasonable time for such a study would be much shorter than the time necessary for the detailed study after the congressional designation of an area as a "wilderness study area." There has been no showing that the Secretary has thus far exceeded a reasonable time in such study and the Court will deny all relief demanded by the Plaintiffs at this time, except as to the Plaintiff Will Orr.
The Court finds and concludes that the acts of the Secretary in designating the lands surrounding the lands of Will Orr as "wilderness study" areas or "further planning" areas and the closing of the access road to his lands constituted a taking of his lands without due process of law in violation of the Fifth Amendment. The Court concludes that unless the access road leading to Mr. Orr's property is reopened to him and his bona fide guests within sixty (60) days from the date of the order in this cause an order will be entered directing the Secretary to withdraw his designation of the surrounding lands as "wilderness study" or "further planning" areas and to resume the "multiple-use" management of said areas forthwith.
An order will be entered in compliance with these findings and conclusions.
[11 ELR 20684]
This cause was heard and the issues determined by the Court as will appear in the findings and conclusions set forth in a Memorandum of Decision filed simultaneously herewith and the Defendant's motion to dismiss the action by way of summary judgment is allowed as to all Plaintiffs except Will Orr.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the action of all Plaintiffs, except Will Orr, be and the same is hereby dismissed.
IT IS FURTHER ORDERED that the Defendant's motion to dismiss the action as to the Plaintiff, Will Orr, be and the same is hereby denied.
11 ELR 20679 | Environmental Law Reporter | copyright © 1981 | All rights reserved