6 ELR 20500 | Environmental Law Reporter | copyright © 1976 | All rights reserved

Miller v. Mallery

Civil No. 73-609 (D. Or. March 5, 1976)

ELR Digest

In this class action challenging Forest Service management practices in Oregon's Bull Run watershed, the court enjoins the continuation of large seale sustained-yield logging and recreation in the area as violative of the Bull Run Trespass Act, 42 U.S.C. § 1862. The city of Portland derives its water from the Bull Run watershed, which was reserved from public entry in 1891. 26 Stat. 1095. Until 1955, only selective logging was carried on in the watershed. Since 1958, though, nearly 600 million board feet of timber have been cut in the watershed.

Initially it should be noted that the label "Bull Run National Forest" mentioned in the Trespass Act is not unconstitutionally vague for purposes of this civil lawsuit. McGowan v. Maryland, 266 U.S. 420 (1961). The Act provides criminal sanctions for "knowing trespass" onto the reserve except for federal officers and city water board officers. Contrary to defendants' contentions, the law will under certain conditions imply a civil remedy for redress of harm to a class that is the beneficiary of a criminal statute. Cort v. Ash, 422 U.S. 66 (1975). Three of the four factors necessary for the validity of this proposition under Cort, supra, have been satisfied. Plaifntiffs, as residents of Portland, are the intended beneficiaries of the Act. The implied cause of action has not been relegated to state law, but is based solely on federal law, since it is against federal officers. The underlying purpose of the legislative scheme is served by a civil action, since it tests the legality of the conduct of the officials charged with protecting the watershed. The fourth factor, the legislative record, is silent in this case, since Congress, at the time it enacted the Trespass Act, had not yet considered implying a civil remedy under a criminal statute. Cf. Stewart v. Travelers Corp., 503 F.2d 108 (9th Cir. 1974).

Jurisdiction in this action exists under the Administrative Procedure Act. 5 U.S.C. § 701. Compare Nguyen Da Yen v. Kissinger, Nos. 75-249, -2632 (9th Cir. Nov. 5, 1975) with Arnold v. Morton, No. 74-2218 (9th Cir. Jan. 23, 1976). In any event, jurisdiction exists under 23 U.S.C. § 1331, the federal question statute. The jurisdictional amount is met, since the value in question is the right to have a clean water water supply for Portland.

The Trespass Act was enacted to preserve Portland's water supply. The dangers sought to be prevented were pollution from grazing animals and fires from humans. The legislative history of revestment of Oregon and California railroad lands, see Oregon & California Ry. Co. v. United States, 243 U.S. 549 (1916); 39 Stat. 218, indicates that the Forest Service has considered its general forest management duties to be circumscribed by the Trespass Act. Compare 40 Stat. 1015 with 41 Stat. 405, 42 Stat. 1019, and 49 Stat. 1460. The specific prohibitions in the Act control over the general duties of the Multiple Use-Sustained Yield Act, 16 U.S.C. §§ 528-31. See Bulova Watch Co. v. United States, 365 U.S. 753 (1961). The Act's presumption is that no one should disturb Bull Run. That presumption can be overcome only by showing that entry affirmatively protests the forest.

Entry for recreational purposes does not protect the forest. Similarly, defendants' assertion that large scale logging protects the forest is without merit. Logging does not protect against landslides. A highly selective logging program may prevent fire danger from blowdowns by removing individual weak trees, but clearcutting, which leaves large bare patches in the forest, contributes to blowdowns by exposing more trees to windstorms. Logging to prevent infestation by the Douglas Fir Bark Beetle also is protective. Most importantly, however, logging does not prevent fire. Indeed, much more fire acreage in the Bull Run has been caused by man than by nature. In addition, the slash accumulating from clearcutting significantly augments the fire hazard. The road system in Bull Run may help prevent fires, but those roads primarily serve logging activities. Moreover, the road system cannot help fight crown fires, which are suppressed only by nature.

An injunction will issue, but will be carefully fashioned in view of the existing recreation and logging practices. The injunction will allow a specified degree of permitted logging to control insects and blowdowns.

The full text of this opinion is available from ELR (31 pp. $4.00, ELR Order No. C-1049).

Counsel for Plaintiff
Charles J. Merten
Marmaduke, Aschenbrenner, Merten & Saltveit
117 S.W. Taylor
Portland OR 97204
(503) 227-3157

Counsel for Defendant
Jack G. Collins
506 U.S. Courthouse
Portland OR 97207
(503) 221-2101

Burns, J.


6 ELR 20500 | Environmental Law Reporter | copyright © 1976 | All rights reserved