Zieski v. Butz

No. J75-2 Civil (D. Alaska December 29, 1975)

In an action involving logging in national forests around Calder Bay, Alaska, the court enjoins the cutting of all trees which are not large, physiologically matured, or dead, and individually marked. Adhering to the Fourth Circuit's decision in West Virginia Division of the Izaak Walton League v. Butz, 5 ELR 20572, which held that the National Forest Organic Act forbids clearcutting in national forests, the court finds that although the injunction will have severe economic consequences for some of the defendants, violation of the statute cannot be condoned. The Organic Act claims are properly before the court: plaintiffs diligently pursued their administrative remedies; and this suit is not barred by laches. Defendants are, however, entitled to summary judgment on plaintiffs' additional claims alleging violations of NEPA, the Multiple-Use Sustained Yield Act, the FWPCA and the Refuse Act.

Counsel for Plaintiffs
Richard C. Folta
P.O. Box 37
Haines, AK 99827
(907) 766-2555

Counsel for Defendants
G. Kent Edwards, U.S. Attorney
P.O. Box 680
Anchorage, AK 99510
(907) 277-1491

L. Mark Wine
Lands and Natural Resources Division
Department of Justice
Washington, DC 20530
(202) 739-2705

William G. Royce
Jernberg & Taylor
111 Stedman Street
P.O. Box 1769
Ketchikan, AK 99901
(907) 225-2147

G. Keith Grim
Robert R. Davies
Lane, Powell, Moss & Miller
1700 Washington Bldg.
1325 Fourth Ave.
Seattle, WA 98101
(206) 624-1700

Peter R. Ellis
4 Creek Street
Ketchikan, AK 99901
(907) 225-6174

[6 ELR 20130]

Van der Heydt, J.:

ORDER

This cause comes before the court upon cross motions for summary judgment filed by the federal defendants, the Ketchikan Pulp Company, and plaintiffs. The court has jurisdiction pursuant to 28 U.S.C. § 1331 and § 1361 with review predicated upon the Administrative Procedure Act, 5 U.S.C. § 701-706 and the Declaratory Judgment Act, 28 U.S.C. § 2201 and § 2202. Since the facts are well known to the parties, they will not be reiterated here.

This cause earlier came before the court on February 24, 1975, upon plaintiffs' motion for preliminary injunctive relief which, on the showing then made, was denied. Findings of fact and conclusions of law were entered on March 7, 1975.

The court has determined that there are no genuine issues of material fact in this case and that accordingly summary judgment is the proper method by which to decide both the plaintiffs' and the defendants' claims. Radobenko v. Automated Equipment Corporation, 520 F.2d 540 (9th Cir. 1975).

After careful review of the administrative record, the affidavits of the various parties which establish standing as well as the injury that may be caused by the granting or denhing of injunctive relief, and the extensive briefs, the court finds that the defendants are entitled to summary judgment on plaintiffs' claims alleging violations of the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., the Multiple-Use Sustained Yield Act, 16 U.S.C. §§ 528 et seq., the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq., and § 13 of the Refuse Act, 33 U.S.C. § 407. NEPA fully has been complied with under the standards set forth in Trout Unlimited v. Morion, 509 F.2d 1276 (9th Cir. 1974). The court cannot find that the Secretary has abused has discretion in striking the balance adopted by him under the Multiple-Use Sustained Yield Act, 16 U.S.C. §§ 528-531. Plaintiffs must fail their FWPCA claims because the instant action does not fall within the category of allowable citizen suits under 33 U.S.C. § 1365. Concerning plaintiffs' Refuse Act claim, 33 U.S.C. § 407, while at least some of the plaintiffs have standing, the court finds that the complained-of activity in the instant case falls within the "public works" exception to the Refuse Act. See Alameda Conservation Association v. State of Califomia, 437 F.2d 1087 (9th Cir. 1971); Sierra Club v. Leslie Salt Co., 354 F. Supp. 1099 (N.D. Cal. 1972); but see Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81 (2d Cir. 1972).

While the defendants are entitled to summary judgment on the aforementioned claims, the court has determined that plaintiffs must prevail upon their Organic Act claims, 16 U.S.C. §§ 475-482. The interpretation given 16 U.S.C. § 476 by the United States Court of Appeals for the Fourth Circuit in West Virginia Division of the Izaak Walton League of America, Inc. v. Butz, 522 F.2d 945 (1975), affirming 367 F. Supp. 422 (N.D.W.Va. 1973), is found to be correct although it may not coincide with the concept of the Forest Service as to sound timber management. That matter, however, is for Congress rather than the courts to decide.

The Organic Act claims are properly before this court. Plaintiffs, while not specifically raising the Organic Act by name during their administrative appeals, did complain that the new five year plan allowed clearcutting. This action was sufficient, particularly since no good purpose is to be served by remanding the matter to the Forest Service. The issue is one purely of statutory interpretation. Additionally, the court has considered carefully the defendants' claims of laches. On the uncontested facts, the court finds laches inapplicable. Plaintiffs diligently pursued their administrative remedies, and when those proved ineffective, immediately proceeded to this court. There was no harm to plaintiffs and they accordingly may have been without standing to raise the Organic Act issue until cuting units were proposed on the area of Prince of Wales Island utilized by them. When such units were established, plaintiffs moved with sufficient dispatch to prevent the application of laches to an otherwise meritorious claim. Further, while this result undoubtedly will cause severe economic consequences to some of the defendants, the court cannot condone a continuous violation of the Organic Act for the ensuing 26 years.

The defendants contend that most of the timber to be cut is large, dead, or mature, but it cannot seriously be contended that many small, young trees are not being cut. Additionally, it is admitted that the trees to be cut are not individually marked in order to assure that only dead, large or physiologically mature trees are cut. Accordingly, the court finds that a permanent injunction should issue barring the cutting of trees other than those which are large, physiologically matured, or dead and requiring such trees to be individually marked prior to cutting.

Plaintiffs' counsel shall prepare and submit an appropriate proposed order granting final injunctive relief limited to the area northwest of an imaginary line extending from the southeast point of Calder Bay to the south end of Red Lake and including the shorelines and drainages of Calder Bay, Red Bay and Red Lake. Additionally, the proposed order shall contain a provision such as that found in footnote 4, p. 947 of West Virginia Division of the Izaak Walton League of America, Inc. v. Butz, supra, 522 F.2d 945, in order to insure that the legitimate activities of the Forest Service are not infringed. Such proposed order shall be submitted to the court within 20 days of the date of this order.

Plaintiffs also have sought a declaration that certain provisions of the Ketchikan Pulp Company Timber Sale Contract No. A 10fs-1042 are in violation of the Organic Act. The court finds that §§ 4 and 9^* of said contract are in violation to the extent that such authorize the cutting of trees that are not individually marked, and to the extent that they allow the purchaser the option to cut trees that are not large, physiologically mature, or dead.

Accordingly, in conformity herewith,

IT IS ORDERED:

1. THAT defendants' motions for summary judgment are granted in part and denied in part.

2. THAT plaintiffs' motion for summary judgment is granted in part and denied in part.

[Appendix]

Designation of Timber

4. Marking. Timber shall be designated for cutting as follows: The exterior boundaries of each natural logging unit to be cut by the purchaser shall be marked in advance of the start of logging operations on the unit. All single seed trees and groups of seed trees selected by the Forest Officer in charge, timber on recreation sites and strips and blocks of timber along thoroughfares and salmon spawning streams to be held intact, and interspersed patches of timber within the logging unit which are classed as unmerchantable or inaccessible shall be plainly marked for reservation from cutting and such marking shall be done sufficiently in advance so as not to interfere with or delay cutting by the purchaser. Within the areas to be thus delineated and subject to exceptions set forth in this section, all live trees merchantable as defined in section 5, and cull live trees over 15 feet in height and 12 inches DBH, are to be cut, and the purchaser shall remove all merchantable material from the sale are. PROVIDED, that not more than ten percent (10%) of the merchantable volume on the area to be cut over may be reserved for seed trees; and PROVIDED FURTHER, that subject to the provisions of section 1(d) of this agreement, the Regional Forester [6 ELR 20131] may designate areas for cutting by tree selection to promote growth, obtain sale age of to protect scenic areas where tractor logging is physicelly and economically feasible.

No Cutting before Measurement

9. Except as provided in section 2(g), . . . no timber shall be cut until paid for, nor removed from place or places agreed upon for scaling until scaled or measured by a Forest Officer. The purchaser shall cut all designated live trees, and shall remove all merchantable material from the sale area. No undesignated live trees shall be cut except that trees unmerchantable because of small size which occur within est blished cutting areas not designated for tree selection may be cu and removed at the option of the purchaser. The cutting and removal of dead trees shall be optional with the purchaser except as such cutting may be required by the Forest Officer in charge for fire protection.

* These sections of the contract are reproducted in the Appendix. — Ed.