Noel v. Cole

No. 9806 (Wash. Super. Ct. October 5, 1977)

The court issues a preliminary injunction halting the cutting of timber on a designated tract pursuant to a contract between defendants state agency and a private logging corporation. Because the continuance of such activity presents a substantial likelihood of significant adverse environmental effects to the immediate locale as well as to the state, the court finds that the plaintiff is likely to prevail in his claim that the agency violated the State Environmental Policy Act (SEPA) in failing to prepare an environmental impact statement (EIS) prior to completing the sale. The court directs defendants to comply with the requirements of SEPA, including preparation of an EIS, before the logging activities may resume and requires the posting of only a minimal bond in light of plaintiff's limited financial resources.

Counsel for Plaintiff
Sam Peach
515 Bellingham Nat'l Bank Bldg., Bellingham WA 98225
(206) 734-2030

Counsel for Plaintiff-Intervenor State of Washington
Slade Gorton, Attorney General; Maryanne McGettigan
Temple of Justice, Olympia WA 98504
(206) 253-2550

Counsel for Defendant Board of Natural Resources
Ted Torve, Senior Ass't Attorney General
Department of Natural Resources, Public Lands Bldg., Olympia WA 98504
(206) 753-5327

Counsel for Defendant Alpine Excavating, Inc.
Charles E. Ehlert
Smith, Brucker, Winn & Ehlert
1411 Fourth Ave., Seattle WA 98101
(206) 624-8901

[8 ELR 20378]

Kershner, J.:

This matter coming on this day before the undersigned judge on the motions of the plaintiff Jack Noel and the plaintiff-intervenor Attorney General for a preliminary injunction; and a hearing having been held on August 12 and 13, and September 6, 7, and 8, 1977, and the court having granted the motion of the plaintiff-intervenor Attorney General on September 6, and having considered the records and files, the motion, the memoranda, and affidavits on file, and the testimony of witnesses, and exhibits and the arguments of counsel and having orally announced a decision at the conclusion of the hearing on September 8, and this order coming on this day in Everett by agreement of the parties, and the attorneys for the parties appearing; now, therefore, the court makes the following findings, conclusions and order:

Findings of Fact

1. Plaintiff Jack Noel is a resident of Whidbey Island, who makes his living as a logging and mill operator, who has used and desires to continue to use the Classic U forest for recreational, aesthetic, and educational purposes.

2. Plaintiff-intervenor Slade Gorton is the duly elected Attorney General of the State of Washington.

3. Defendant Bert L. Cole is the Land Commissioner of the State of Washington and defendant Board of Natural Resources is an agency of the State of Washington, and they are both responsible for administering public lands of the State of Washington, including the tract known as "Classic U," described hereinafter.

4. Defendant Alpine Excavating, Inc. is a Washington corporation which submitted the highest bid for the timber on the Classic U tract and has entered into a contract with the State Department of Natural Resources to purchase, clearcut, and remove said timber.

5. This action concerns a tract of land and the timber and other resources thereon, known as the "Classic U" tract, situated on Whidbey Island in Puget Sound, directly east of and adjacent to South Whidbey Island State Park, in Island County, Washington, consisting of approximately 255 acres, containing approximately 9,670,000 board feet of Douglas fir, hemlock, white fir, hardwood, cottonwood, spruce, cedar, and other varieties, described as:

SW 1/4 of NW 1/4, W 1/2 SW 1/4 of Section 29, Township 30 North, Range 2 East, W.M.

6. Prior to May 23, 1977, defendants Cole and Board made a decision to sell the timber of the Classic U forest for clearcutting and solicited and opened bids therefor on May 23, 1977, including defendant Alpine's bid of $1,578,745. Thereafter defendant Cole confirmed the sale of the timber to defendant Alpine and executed a contract with defendant Alpine dated July 21, 1977, to be performed by September 30, 1979.

7. Prior to making the decision to sell the Classic U timber for clearcutting, to auctioning the timber, and to executing a bill of sale and contract for the sale of the timber, the defendants Cole and Board of Natural Resources did not prepare a detailed environmental impact statement or follow the procedures described in the State Environmental Policy Act (SEPA), RCW § 43.21C.030.

8. The Class U forest contains in close proximity a mixture of trees and forest types of various ages, species, and stages of succession, including many trees hundreds of years old, and is for that reason a relatively rare and uncommon forest on Whidbey Island and is unique to Whidbey Island.

9. The Classic U forest provides a type of wildlife habitat that is rare and unusual on Whidbey Island, which makes it an actual or possible home for species of wildlife that are uncommon and rare on Whidbey Island.

10. The clearcutting of the Classic U forest will result in the removal of almost all the trees on the 255-acre tract and the destruction of the forest and wildlife habitat and possible destruction of the wildlife inhabiting the forest.

11. The proposed sale of the Classic U timber is the largest such sale and clearcut conducted on Whidbey, Island by the defendants Cole and Board of Natural Resources in more than 20 years.

12. The proposed sale and clearcutting of the Classic U timber may have adverse effects on South Whidbey State Park and visitors thereto.

13. The proposed sale and clearcutting of the Classic U timber will cause actual and irreparable loss, damage, and injury to the plaintiff Jack Noel, and to citizens of Whidbey Island and the State of Washington, for which there is no adequate remedy at law.

14. The defendant Alpine Excavating, Inc. has already begun to cut and remove trees from the Classic U tract and the plaintiff Jack Noel and the plaintiff-intervenor Attorney General have a well-grounded fear of invasion of their rights.

15.There is a reasonable likelihood that the proposed sale and clearcutting of the Classic U timber is a major action significantly affecting the quality of the environment.

16. There is a reasonable likelihood that the proposed sale and clearcutting of the Classic U timber has a potential for a substantial impact on the environment.

17. The plaintiff Jack Noel cannot afford a bond in the amount of all the economic injury alleged by defendant Alpine Excavating, Inc. as a consequence of issuance of a preliminary injunction herein, and would be unable to post such a bond if it were required.

Based upon the foregoing Findings of Fact, the court makes the following:

Conclusions of Law

1. Plaintiff Jack Noel has standing to obtain a preliminary injunction.

2. Plaintiff-intervenor Attorney General has standing, authority, and a right to intervene in this action for the purpose of defending the constitutionality of certain amendments to the Washington State Forest Practices Act, RCW § 76.09, known as Laws of 1975, 1st Ex. Sess., ch. 200, and for the purpose of [8 ELR 20379] participating in all other issues of the matter, under the State Environmental Policy Act, RCW § 43.21C.020(2) and under CR 24.

3. There is a reasonable likelihood of success in determining whether or not the decision to sell and clearcut the Classic U forest is a major action and whether or not such action significantly affects the quality of the environment.

4. The plaintiff and the plaintiff-intervenor have made a showing of a reasonable likelihood of prevailing in their contention that the defendants Cole and Board of Natural Resources, and members thereof, are required to prepare a detailed environmental impact statement and follow the procedures specified in the State Environmental Policy Act (SEPA), RCW § 43.21C.030 before deciding to sell the timber on the "Classic U" tract, and that they have not done so.

5. All of the requirements for issuance of a preliminary injunction herein have been met and the plaintiff Noel and the plaintiff-intervenor Attorney General are entitled to issuance of a preliminary injunction.

6. Bond is not required for issuance of a preliminary injunction on request of the plaintiff-intervenor Attorney General.

Accordingly, it is hereby:

ORDERED, that the defendants, their agents, officers, servants, employees, and any person in active concert with them, be and are hereby enjoined and restrained until further order of the court from proceeding any further to execute or carry out the provisions of the contract of sale of the timber on the "Classic U" sale area, except that defendants may remove all existing right-of-way timber previously cut; may erect and maintain gates or other barriers on all roads on the sale area; may also take the measures necessary to minimize erosion or soil damage on all existing roads or cleared right-of-way, including but not limited to placing of culverts, construction of water bars, and seeding of grass.

Nothing herein shall be construed to prevent the defendants from carrying out management activities authorized by law not related or associated with carrying out the provisions of the contract and bill of sale to defendant Alpine Excavating, Inc.; and it is further

ORDERED that plaintiff Noel's bond for the payment of costs and damages as may be suffered by any party who is found to have been wrongfully enjoined herein, in the amount of, or security equivalent to $1,000 be continued without increase in the amount thereof.