People v. Butz

No. C-73-1263-SAW (N.D. Cal. August 16, 1973)

A preliminary injunction is issued against roadbuilding and logging by a private company on the Pocket parcel of the Nye Timber Sale, since the U.S. Forest Service's decision not to file an environmental impact statement for the sale may have been erroneous. The proposed lumbering activity may present a major federal action significantly affecting the environment, and thus fall under the requirements of NEPA, by damaging land which has wilderness characteristics. The Crockett parcel portion of the sale is excluded from the injunction since all the environmental damage complained of there has already occurred. Defendants' defenses of laches, non-exhaustion of administrative remedies, and lack of standing are overruled, and the court notes that the public interest supports granting an injunction to save a wilderness area.

Counsel for Plaintiffs
Evelle J. Younger Attorney General
Alexander Henson Deputy Attorney General
E. Clement Shute, Jr. Deputy Attorney General
State Building
455 Golden Gate Avenue
San Francisco, California 94102

Counsel for Defendants
James L. Browning U.S. Attorney
Paul E. Locke Asst. U.S. Attorney
Federal Building
450 Golden Gate Avenue
San Francisco, California 94102
Paul Renne Cooley, Godward, Castro,
Huddleson & Tatum
Alcoa Building
1 Maritime Plaza
San Francisco, California 94111

[3 ELR 20796]

Weigel, J.

Plaintiff's Motion for Preliminary Injunction came on for hearing on August 7, 1973 before the Honorable Stanley A. Weigel. Plaintiff was represented by Evelle J. Younger, Attorney General of the State of California, by Alexander Henson and E. Clement Shute, Jr., Deputy Attorneys General. The federal defendants were represented by James L. Browning, United States Attorney, by Paul E. Locke, Assistant United States Attorney. Defendant Commander Industries was represented by Paul Renne of Cooley, Godward, Castro, Huddleson & Tatum. Following said hearing the parties have agreed and stipulated that the Court may issue a preliminary injunction, the terms of which are set forth below. The preliminary injunction is based upon the conclusions of law the Court has determined to be applicable to the issues raised at this stage of the proceedings but are not binding upon any party at the trial of the case on the merits.

CONCLUSIONS OF LAW

1. The National Environmental Policy Act, Title 42 U.S.C., Section 4321 et seq., mandates that all federal agencies prepare environmental impact statements for all proposed "major federal actions significantly affecting the quality of the human environment." Id. at § 4332(2)(C).

2. Plaintiff has demonstrated a likelihood of establishing that the Forest Service has failed to comply with the National Environmental Policy Act as its determination not to prepare an environmental impact statement for the Nye Timber Sale may be erroneous in that the activity in question here may constitute a major federal action significantly affecting the quality of the human environment. The roadbuilding and logging of 770 acres scattered throughout 3,080 acres (in two parcels, known as Pocket and Crockett), 2,000 acres of which may in fact possess wilderness characteristics, presents a federal action of such proportion and possible impact as to present a likelihood that an environmental impact statement should have been prepared prior to the commencement of such activity.

3. The balance of injuries favors the issuance of a preliminary injunction against any activity pursuant to the Nye Timber Sale in the Pocket portion of that sale as the proposed activity in that area may present a major federal action significantly affecting the environment. It appears unnecessary to determine whether the Crockett portion of the Nye Timber Sale would have had to be analyzed in any environmental impact statement because it appears substantially all the environmental damage of which plaintiff complains took place before this Court entered its temporary restraining order. Consequently, the balance of equities favors the issuance of a preliminary injunction in the Pocket Area but not the Crockett Area. Consequently, a preliminary inuunction should issue enjoining any activity pursuant to the Nye Timber Sale only in the Pocket portion of the Nye Timber Sale until further order of the Court.

4. The public interest supports the granting of a preliminary injunction to save an area that may possess wilderness characteristics pending compliance with the National Environmental Policy Act.

5. For purposes of issuing the preliminary injunction the Court concludes that the Attorney General of the State of California has standing to represent the people of the State of California and to seek compliance with the National Environmental Policy Act.

6. For purposes of issuing the preliminary injunction the Court concludes that plaintiff has exhausted whatever administrative remedy it may have had, should such exhaustion be necessary.

7. For purposes of issuing the preliminary injunction the Court rejects defendants'defense of laches.

ORDER

NOW, THEREFORE, IT IS ORDERED that defendants, their agents, officers, servants, employees, and any persons in active concert or participation with them, are hereby enjoined and restrained until further order of this Court from directly or indirectly cutting timber, building roads, or taking any other action or allowing any other person to cut timber, build roads or to take any other action or allowing any other person to cut timber, build roads or to take any other action which could change the wilderness character of the Pocket portion of the Nye Timber Sale Area of the Mendocino National Forest excepting emergency action resulting from fire, disease, insect infestation or natural disaster. Prompt notice of any such emergency will be given to plaintiff. The Temporary Restraining Order is hereby dissolved and no preliminary injunction shall issue as to the Crockett portion of the Nye Timber Sale Area.