Cape Fox Corp. v. United States

• Citation: 456 F. Supp. 784
• Decision Date: 04 August 1978
• Docket Number: Civ. No. K 76-1.
• Parties: CAPE FOX CORPORATION, Plaintiff, v. UNITED STATES of America, Earl L. Butz, Secretary of Agriculture, John R. McGuire, Chief, Forest Service, John Sandor, Regional Forester, James Watson, Forest Supervisor, Thomas S. Kleppe, Secretary of Interior, Department of Interior, Curtis V. McVee, State Director, Bureau of Land Management, Robert Sorenson, Director of Lands and Mineral Operations, Bureau of Land Management, Alaska Timber Corporation, Ketchikan Pulp Company, Revilla Logging, Defendants.
• Court: U.S. District Court — District of Alaska

456 F. Supp. 784

CAPE FOX CORPORATION, Plaintiff, v. UNITED STATES of America, Earl L. Butz, Secretary of Agriculture, John R. McGuire, Chief, Forest Service, John Sandor, Regional Forester, James Watson, Forest Supervisor, Thomas S. Kleppe, Secretary of Interior, Department of Interior, Curtis V. McVee, State Director, Bureau of Land Management, Robert Sorenson, Director of Lands and Mineral Operations, Bureau of Land Management, Alaska Timber Corporation, Ketchikan Pulp Company, Revilla Logging, Defendants.

Civ. No. K 76-1.

United States District Court, D. Alaska.

August 4, 1978.

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Peter R. Ellis, Ellis, Sund & Whittaker, Ketchikan, Alaska, Cathy V. Canorro, Ellis, Sund & Whittaker, Ketchikan, Alaska, for plaintiff.

Alexander O. Bryner, U. S. Atty., Milton L. Moss., Asst. U. S. Atty., Anchorage, Alaska, Cynthia Pickering, Anchorage, Alaska, Gary B. Randall, Lands & Natural Resources Div., U. S. Dept. of Justice, Washington, D.C., for Federal defendants.

John W. Peterson, Zeigler, Cloudy, Smith, King & Brown, Ketchikan, Alaska, for defendants, Ketchikan Pulp Co., and Alaska Timber Corp.

ORDER

FITZGERALD, District Judge.

This case is here on cross motions for summary judgment.

The parties have by pre-trial order adopted the following stipulation of facts:

"1. On October 17, 1969, the United States entered into the Devil's Club No. 2 Timber Sale Contract, (hereinafter cited as "Contract"), with the contract retroactive to June 26, 1969. The contract provided for Annette Timber Corporation, later known as Alaska Timber Corporation (hereinafter cited as ATC), to harvest 43,600,000 board feet of timber for the Tongass National Forest by December 31, 1974 under standard Forest Service procedures.

2. The Alaska Native Claims Settlement Act (hereinafter cited as ANCSA) was passed on December 18, 1971. Plaintiff Cape Fox Corporation (hereinafter cited as Cape Fox), a village corporation was organized under 43 U.S.C. 1607 and is eligible to select land under 43 U.S.C. 1615, and receive benefits under ANCSA.

3. By contract dated April 27, 1973, defendant Ketchikan Pulp Company (hereinafter cited as KPC), assumed performance of the contract as ATC's purchasers representative. In return, KPC was to and did receive all lumber harvested.

4. ATC is an Alaska corporation with its principal place of business in Alaska.

5. KPC is a corporation with its principal place of business in Alaska.

6. Until 1974, there were no operations under the contract.

7. On April 19, 1973, before formation of Cape Fox, the Forest Service advised Sealaska Corporation about the contract. There was no indication of Native opposition.

8. On April 24, 1974, the Forest Service informed ATC that the contract expired on December 31, 1974, and that it might not qualify for an extension.

9. Subsequent to the notification, KPC began vigorous efforts to cut timber in order to qualify for an extension and made substantial progress toward harvesting and road building.

10. Mr. Edgars of the Forest Service attempted to contact Mr. Trout of Cape Fox several times but got no reply. A meeting in December, 1974 was finally held between Mr. Trout and Mr. Chelstad, a Ketchikan Area Timber Management Officer, to discuss the extension and modification of the timber sale contract. Mr. Trout was informed that Devil's Club was within the Cape Fox selection area.

11. On August 13, 1974, KPC and the Forest Service met, and the Forest Service informed KPC that the Devil's Club was within the Cape Fox selection area and that the extension depended in part on limiting the cut to environmentally specified areas. KPC was told to limit its operations so that meaningful environmental review was possible.

12. On August 23, 1974, the Forest Service wrote Alaska Timber Corporation and advised them that the contract area was within the Cape Fox selection area, that environmental considerations would change the size of the clear cut units and reduce the total volume upon final extension, and that it should confine its harvest to particular areas and a failure to do so would result in a denial of the extension.

13. On November 25, 1974, ATC requested a two-year extension indicating as of October 31, 1974, 25,000,000 board feet had been cut.

14. On December 2, 1974, a letter was sent by Forest Supervisor Richard Wilson to Cape Fox, informing plaintiff that the contract would probably be extended.

15. On December 12, 1974, Cape Fox submitted its selection application pursuant to ANCSA, which included the Devil's Club Sale area and the Ward Creek Drainage Tract.

16. On December 23, 1974, ATC was sent a form to conditionally extend the contract for a short period to allow the environmental modification to be completed. No timber was to be cut until the contract was finally extended.

17. On December 26, 1974, Sealaska Corporation, for itself and Cape Fox, objected to the contract extension until a meeting could be conducted. Sealaska Corporation withdrew its objection after meeting with the Forest Service.

18. The contract was conditionally extended to March 31, 1975 and was then again conditionally extended to May 31, 1975. On May 2, 1975, the contract was finally extended to December 31, 1976.

19. While the environmental analysis and modification were being proposed, Mr. Edgars of the Forest Service attempted to contact Mr. Trout but was unsuccessful. On June 24, 1975, a copy of the contract was sent to Mr. Trout, and on December 3, 1975, a meeting was held between the Forest Service and Mr. Trout. Further information was sent on December 12, 1975. On January 13, 1976, plaintiff's counsel wrote to the Forest Service concerning the escrow. None of these communications objected to the environmental modification or the extension.

20. The Forest Service environmental modification was approved by the Forest Service on November 12, 1975. The modification was thought to reduce the contract size to 28,500,000 board feet but subsequent calculations revealed that the volume of the sale was approximately 25,700,000 board feet.

21. The final contract, including the environmental modification, was executed on December 31, 1975.

22. In a letter dated February 26, 1976, Cape Fox asked the Forest Service to substitute other timber areas for the Devil's Club area under 43 U.S.C. 1614.

23. On March 16, 1976, ATC refused to substitute timber areas and the Forest Service advised Cape Fox that substitution under 43 U.S.C. 1614 did not permit unilateral modification of contract boundaries.

24. On March 31, 1976, the Bureau of Land Management issued a decision to grant an interim conveyance to the Devil's Club area subject to the restriction of 43 U.S.C. 1621(k) for national forests and reservations by the United States. The conveyance inadvertently omitted the reservation required by 43 U.S.C. 1613(c), and Cape Fox prepared a written waiver of its right to object to the omission. Cape Fox's waiver contained a typographical error and the Bureau of Land Management refused to accept the written waiver. Further action on the decision to enter an interim conveyance halted upon the refusal of the Bureau of Land Management to accept plaintiff's oral waiver of its objection to the omission, and plaintiff's refusal to sign an easement agreement.

25. Upon conveyance, stumpage paid to the United States on the Devil's Club Timber Sale Contract after January 1, 1976 will be paid to Cape Fox under Public Law No. 94-204.

26. At a meeting on May 7, 1976, Cape Fox indicated it wanted to stop the sale. Plaintiff subsequently filed suit and sought a temporary restraining order. Judge Fitzgerald denied the request for the temporary order and later denied plaintiff's motion for a preliminary injunction.

27. On May 6, 1977, the Forest Service notified ATC that all contract requirements had been met and the contract was closed.

28. Subsequently, plaintiff filed a motion for preliminary injunction seeking conveyance of the Ward Creek Drainage Tract in order to harvest allegedly deteriorating timber."

Cape Fox has made several claims: (1) for damages exceeding $10,000 and a declaratory judgment against the United States, for a declaratory judgment against certain federal officers, and for trespass damages exceeding $10,000 and a declaratory judgment against the non-federal defendants arising out of the federal government's extension of the Devil's Club timber sale contract; for declaratory and injunctive relief against the federal defendants to preserve allegedly deteriorating timber assets in the Ward Creek Drainage Tract; and (2) for injunctive relief against the federal defendants to compel conveyance of the Devil's Club and Ward Creek Drainage Tract selections.

JURISDICTION

In claims against the United States Cape Fox seeks to invoke district court jurisdiction under 28 U.S.C. § 1331 (federal question jurisdiction), 5 U.S.C. §§ 701-706 (the Administrative Procedure Act), 28 U.S.C. §§ 2201, 2202 (the Declaratory Judgment Act), 28 U.S.C. § 1362 (Indian federal question jurisdiction), 28 U.S.C. § 1361 (Mandamus), and 28 U.S.C. § 1346 (the Tucker Act). In proceedings brought against the United States or its officers the plaintiff must establish not only federal court jurisdiction but must also surmount the barrier of sovereign immunity.¹

The Claims for Damage and Declaratory Relief Against the United States Arising out of the Devil's Club Timber Sale Contract Extension

The threshold issue is whether the district court has jurisdiction over the claims for damages exceeding $10,000 and declaratory relief against the United States. The Tucker Act, 28 U.S.C. § 1491², established court of claims jurisdiction over damage claims made against the United States exceeding $10,000.³ The court of claims, however, has no power to grant solely equitable relief⁴ and its jurisdiction is limited to actions against the United...