West Virginia Division of the Izaak Walton League of America, Inc. v. Butz

No. 73-68-E (N.D. W. Va. January 25, 1974)

The court denies a motion by defendants to amend its final order holding illegal, under the Organic Act, clearcutting in the Monongahela National Forest and requiring the Forest Service to modify its regulations, contracts, and manual provisions accordingly before July 1, 1974. Defendants sought to have the modification requirement deleted altogether, or else limited to regulations, contracts, and provisions solely for the Monongahela Forest with a period of one year after the court's order becomes final allowed for the revision.The court rules that the public interest in the lawful sale and harvesting of timber from public lands requires that the Forest Service be compelled to proceed with the revisions as originally ordered without any further delay. The court also denies defendants' request for oral argument on the motion to amend, noting that the issue has been extensively briefed by counsel and that oral argument would only serve to delay either compliance by defendants or their prosecution of an appeal. For the court's earlier orders, see 3 ELR 20895 and 4 ELR 20128. See also, Comment, Clearcutting Ordered Halted on Federal Lands, 3 ELR 10177 (Dec. 1973).

Counsel for Plaintiffs
Bruce J. Terris
1906 Sunderland Place, N.W.
Washington, D.C. 20036

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

[4 ELR 20229]

Maxwell, J.

ORDER

Defendants, pursuant to the provisions of Rule 59, Federal Rules of Civil Procedure, by Motion filed January 2, 1974, seek to have the Court amend its final order in the above styled civil action, entered on December 21, 1973, by deleting paragraph 4 (appearing on page 3 thereof), or, as an alternative, to modify this paragraph 4 of the Court order ". . . as explained in the accompanying memorandum."

In this motion it is further urged:

Also, defendants respectfully request oral agrument.

The "accompanying memorandum" which defendants would employ as an appendage to their motion is a nine page document with an accompanying three page affidavit. The memorandum cites law, presents arguments, but in essence urges:

The Court's Order should not require the amendment of Forest Service regulations, contracts, and manual providions. and

In the alternative, paragraph four of the Order should be modified to require new regulations, contract forms and manual provisions solely for the Monongahela National Forest, and should allow until one year after the Order of this Court becomes final for the specific provisions to be revised.

While this Court's order of December 21, 1973, is explicit in its terms, and while the Court's memorandum opinion discusses the state of the law, as this Court sees it, with regard to the sale of timber in the Monongahela National Forest, paragraph 3 of the Court's order of December 21, 1973, provides in part that the defendants and other named persons in concert with them

. . . are hereby permanently enjoined . . . in the contracting for timber sales, under the authority of the Organic Act of 1897 . . . in the Middle Mountain North, Snorting Lick and Music Run Timber Sales, and, elsewhere on the Monongahela National Forest . . . .

The paragraph of the Court's order of December 21, 1973, which is sought to be modified by amendment, is as follows:

[4 ELR 20230]

NOW, THEREFORE, IT IS ORDERED that

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.

Being of the opinion that the public interest requires that defendants proceed with the lawful sale and harvesting of timber from public lands, and that sale policies and practices must be defined by the internal documents of defendants, it is apparent that the defendants must be compelled to proceed as expeditiously as is possible with the revision of their regulations, manual provisions and contracts, so as to get on with the public's business without any further delay or procrastination.

Not being advised as to any efforts in this regard by the defendants to this date, although they were made aware of the opportunity to proceed with lawful timber sales upon the issuance of this Court's opinion of November 6, 1973, and subsequent order of December 21, 1973, the Court remains of opinion that the defendants can, should and must proceed forthwith in the exercise of their responsibility. This Court believes that July 1, 1974, is an outside date for defendants to bring into compliance the regulations, manual provisions and contracts used for the lawful sale of timber in the geographic area covered by this litigation.

While the Court, in litigation of considerable significance, is always anxious to have the oral as well as the written expressions of counsel, the matters presented by the pending motion to amend the Court's order are so well briefed by counsel that oral argument would not serve any valid purpose. Oral arguments would serve to delay either the compliance of defendants with this Court's judgment or the prosecution by the defendants of their right of appeal. Further delay by scheduling the matter for oral argument, as requested by defendants, would serve no valid purpose in the Court's judgment, either as to the issues of law presented by defendants' motion or as to the rights of any of the parties. Accordingly, the Court, on the record and with the excellent briefs of counsel, proceeds to pass on the defendants' motion to amend the earlier order of the Court.

Accordingly, and for the reasons expressed herein, it is ORDERED that defendants' motion to amend the Court's order of December 21, 1973, is denied in all particulars.