651 F.2d 1234 (7th Cir. 1981), 80-2491, Downstate Stone Co. v. United States

Docket Nº:80-2491.
Citation:651 F.2d 1234
Party Name:DOWNSTATE STONE COMPANY, an Illinois Corporation, Plaintiff-Appellee, v. UNITED STATES of America, et al., Defendants-Appellants.
Case Date:June 19, 1981
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1234

651 F.2d 1234 (7th Cir. 1981)

DOWNSTATE STONE COMPANY, an Illinois Corporation, Plaintiff-Appellee,


UNITED STATES of America, et al., Defendants-Appellants.

No. 80-2491.

United States Court of Appeals, Seventh Circuit

June 19, 1981

Argued May 14, 1981.

Rehearing and Rehearing In Banc Denied July 21, 1981.

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David C. Shilton, AAG, Dept. of Justice, Appellate, Washington, D. C., for defendants-appellants.

James C. Cook, Walker & Williams, Belleville, Ill., for plaintiff-appellee.

Before SPRECHER, Circuit Judge, NICHOLS, Associate Judge, [*] and CUDAHY, Circuit Judge.

SPRECHER, Circuit Judge.

This case presents the question of the propriety of a preliminary injunction that enjoins the United States from enforcing, during the pendency of a quiet title action, several criminal statutes intended to protect our national forests and to insure compliance with the applicable rules and regulations of the United States Department of Agriculture Forest Service, which oversees the national forests. This dispute arises from a quiet title action brought by Downstate Stone Company ("Downstate") against the United States, pursuant to 28 U.S.C. § 2409a, to resolve the question of whether Downstate is entitled to quarry limestone under a mineral reservation Downstate holds on a parcel of land located in Shawnee National Forest. We reverse the district court's grant of a preliminary injunction and vacate the injunction immediately.


The underlying quiet title dispute involves two parcels of land, a 40 acre tract referred to as the Purcell tract and an 80 acre tract referred to as the Wiedemann tract, which are part of the Shawnee National Forest in southern Illinois. The tracts are heavily forested lands of predominantly pole-size timber and underbrush and constitute a part of the northwest flank of a rugged, hilly section of forest known as the Cave Hill area. The tract contains a significant outcropping of high-grade Kincaid limestone.

The United States acquired title to the Purcell and Wiedemann tracts in 1935 pursuant to the Weeks Act, 16 U.S.C. § 515, et seq. Both the Wiedemann and Purcell conveyances contained the following reservation of mineral rights:

* * * reserving, ... all minerals in, upon, or under the above described real estate, together with the right to prospect for and remove said minerals ....

The reservation on the Purcell tract was for a period of 50 years, expiring in 1985. The Wiedemann reservation was for 75 years, until 2010. Both conveyances stated that any operations to prospect for or extract the reserved minerals "shall be done and carried out in accordance with the following rules and regulations prescribed by the Secretary of the Department of Agriculture, ...." 1

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H. H. Barter, the 90% owner and chief operating officer of Downstate, 2 acquired title to the Purcell and Wiedemann mineral rights reservations in June and July, 1980, from the Purcell and Wiedemann heirs. At some point, no later than June, 1980, Barter contacted local Forest Service personnel regarding his plan to reopen a limestone quarry in the Cave Hill area that once operated during the 1930's. The contemplated quarry would include the Purcell and Wiedemann tracts and other surrounding properties, including some national forest lands to which the United States held title outright without any mineral reservations outstanding. According to Barter's testimony at the preliminary injunction hearing, six or seven meetings were held during June through September between representatives of Downstate and the Forest Service.

Barter acknowledged throughout these negotiations that, in order to exercise the mineral reservations, Downstate would have to comply with the rules and regulations of the Forest Service, as set forth in the 1935 deeds. A letter dated June 5, 1980, from John Ward, Elizabethtown District Forest Service Ranger, to Barter recounted a June 3, 1980 meeting between Barter and Forest Service representatives. The letter stated, inter alia, that "(t)he environmental assessment procedures and permit processing will require approximately 6 months to accomplish."

At some point during the negotiations, Barter was informed by Forest Service attorneys that the Forest Service took the position that the Purcell and Wiedemann mineral reservations did not include the right to extract limestone, as Barter sought to do. 3 The September 3, 1980 letter from David Jolly, Supervisor of the Shawnee National

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Forest, to Barter's attorney explains the Forest Service position: 4

The Forest Service acknowledges Mr. Barter's right to explore for and extract the minerals included in the above mentioned mineral reservation. We do not agree that limestone is included in the definition of minerals as contained in the Purcell and Wiedemann reservations. Therefore, Mr. Barter can explore for minerals such as coal, oil, gas and fluorspar, but not specifically for limestone.

Despite Barter's knowledge that the Forest Service contested his right to quarry limestone, and with full knowledge that any exercise of the mineral rights would require prior approval of the Forest Service, Downstate entered into a lease for quarrying equipment with a monthly rental of $90,000 beginning September 15, 1980. Shortly thereafter, Downstate sought to commence clearing a 200' X 1000' strip of forest located on the Purcell tract as a stock-piling area for limestone. On September 26, 1980, Downstate representatives met with a number of Forest Service personnel to discuss this contemplated clearing operation and to present the Forest Service with the Initial Draft Environmental Assessment Report pertaining to the proposed limestone quarrying. Downstate did not receive permission to proceed with the contemplated clearing operation. Consequently, Downstate presented the Forest Service with a written ultimatum 5 that if the Forest Service did not approve the proposed clearing operation by 5:00 p. m. on that day, later extended to September 29, 1980, then Downstate would proceed to clear the area as it deemed appropriate.

In a letter dated September 29, 1980, Forest Supervisor Jolly responded to Downstate's ultimatum and informed Downstate "that a decision on your request will not be rendered by the date and time set out in your letter, specifically, 5:00 p. m., September 29, 1980. The need for independent agency examination and determination of environmental factors associated with such a stockpiling site alone requires more time than you have allotted in your request." The letter continued with the following admonition: 6

You, your agents and employees are also hereby advised that the location of such a site on National Forest land without approval is a violation of the provisions of 36 CFR 261.10(a) and punishable in accordance with the sanctions set out in 16 USC 551. Criminal citations will be issued to violators. Continued violations after citation may result in arrest. Timber removed or trees cut in the unapproved location of such a site may also be punishable under the provisions of 18 USC 1852, 1853.

This quiet title action was filed by Downstate on October 6, 1980 in the United States District Court for the Southern District of Illinois against the United States pursuant to 28 U.S.C. § 2409a and 28 U.S.C. § 1346(f). Downstate immediately moved for a preliminary injunction enjoining the United States and its officers or employees "during the pendancy (sic) of this action from prosecuting either Downstate or its officers, employees or agents under 36 CFR 261.10(a), 16 U.S.C. § 551, or 18 U.S.C. §§ 1852-53." A hearing was held on Downstate's motion on October 8, 1980 before

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Chief Judge Foreman. On October 15, 1980, Chief Judge Foreman granted the preliminary injunction and,

enjoin(ed) defendants United States of America, United States Department of Justice, United States Department of Agriculture, United States Department of Agriculture Forest Service, and their employees, servants, agents or those acting in concert with them, during the pendency of this action, and until otherwise ordered by this Court, from prosecuting either Downstate Stone Company or any of its officers, employees or agents under 36 C.F.R. 261.10(a), 16 U.S.C. § 551 or 18 U.S.C. §§ 1852 thru 53, for acts done in conjunction with its mining operations on the subject premises.

Downstate Stone Co. v. United States, No. 80-4456, slip op. at 5 (S.D.Ill. Oct. 15, 1980). 7

Downstate subsequently cleared seven acres of the Purcell tract without Forest Service approval. The United States appealed to this Court, and we now reverse and vacate the district court's grant of a preliminary injunction.


The district court has broad discretion to determine whether the applicable standards justifying the grant of a preliminary injunction have been satisfied. In reviewing the grant or denial of a preliminary injunction, we will reverse the district court only if there is a clear showing that, in light of the applicable standards, the district court's action constituted an abuse of discretion. Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32, 95 S.Ct. 2561, 2567-68, 45 L.Ed.2d 648 (1975); O'Connor v. Board of Education, 645 F.2d 578 at 580 (7th Cir. 1981).


We question first the propriety of an injunction enjoining enforcement of concededly valid and constitutional federal criminal statutes designed to police compliance with valid and applicable Forest Service rules and regulations. Courts repeatedly have recognized the very heavy presumption against enjoining pending or threatened criminal prosecutions. "The general rule is that equity will not interfere to prevent the enforcement of a criminal statute even though unconstitutional .... To justify such interference there must be exceptional circumstances and a clear showing that an injunction is necessary in order to afford adequate protection of...

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