West Virginia Division, Izaak Walton League v. Butz

No. 73-68-E (N.D. W. Va. December 21, 1973)

The court grants plaintiffs' motion for summary judgment and enjoins defendants from allowing clearcutting under contracts for the sale of timber in the Monongahela National Forest since this practice violates the Organic Act of 1897. Defendants are ordered to revise their regulations, manual, and contracts in accordance with the injunction and the court's opinion of Nov. 6, 1973 not later than July 1, 1974. For the text of the court's Nov. 6, 1973 opinion, see 3 ELR 20895; see also Comment, Clearcutting Ordered Halted on Federally Owned Lands, 3 ELR 10177 (Dec. 1973).

Counsel for Plaintiffs
Bruce J. Terris
1908 Sunderland Place, N.W.
Washington, D.C. 20036

Counsel for Defendants
L. Mark Wine
Department of Justice
Washington, D.C. 20530

[4 ELR 20128]

Maxwell, J.

ORDER

This Court having considered the memorandum and argument of the parties on cross-motions for summary judgment and having issued an Opinion on November 6, 1973, the same is here now made a part of the record of this civil action, and it further appearing to the Court that said opinion is dispositive of the litigation,

NOW, THEREFORE, IT IS DECLARED that

1. Defendants' practice and policy of letting contracts for the sale of timber in the Monongahela National Forest which (1) permit the cutting of trees which are not dead, matured or large growth; (2) permit the cutting of trees which have not been individually marked; and (3) allow timber which has been cut to remain at the site violate the Organic Act of 1897.

2. 36 C.F.R. 221.15(a). FSM 2403.1, 2403.5-2, 2430.5- 2442.01, 2442.6, 2471.2, 2471.21-.22, 2471.3-.32 and 2476.4-.42 and Sec. B2.3-B2.34 of Timber Sale Contracts, Form 2400-6 and 2400-5 and Sec. BT2.34 of Timber Sale Contract Form 2400-6T and 2400-5T violate the Organic Act of 1897 and are invalid insofar as they propose to permit (1) the sale and cutting of timber which is other than dead, matured, or large growth trees; (2) the sale and cutting of trees which have not been individually marked; or (3) the sale and cutting of trees which will not be removed.

NOW, THEREFORE, IT IS ORDERED that

1. Plaintiffs' Motion for Summary Judgment is granted;

2. Defendants' Motion for Summary Judgment is denied;

3. Defendants, their agents, officers, servants, employees, attorneys and all in concert therewith be, and they are hereby permanently enjoined from directly or indirectly, in the contracting for timber slaes, under the authority of the Organic Act of 1897, allowing the cutting, in the Middle Mountain North, Snorting Lick and Music Run Timber Sales, and, elsewhere on the Monongahela National Forest, of (1) trees which are not dead, matured or large growth; (2) trees which have not been previously marked; or (3) trees which will not be removed.

4. Defendants revise their regulations, manual and contracts, in a manner consistent with this Court's opinion of November 6, 1973, and this order, not later than July 1, 1974.

Nothing in this order shall be construed as affecting the authority of the defendants to allow the cutting of trees for the purpose of (1) building highways, roads and trails in accordance with 23 U.S.C. 204, 205; (2) protecting the forest from fire and depredation and from insects and disease in accordance with 16 U.S.C. 551, 594a, 594-1 to 594-5; (3) managing the forests for the uses (such as recreation and wildlife), other than timber harvest, permitted by the Multiple Use-Sustained Yield Act, 16 U.S.C. 528 et seq; (4) thinning and improving the forests in accordance with 16 U.S.C. 576-576b; and (5) investigating, experimenting, and testing methods of reforestation and of growing and managing forest products in accordance with 16 U.S.C. 581.

Nothing in this order shall be construed as affecting existing contracts for the sale of timber on the Monongahela National Forest.