Miller v. Mallery

• Decision Date: 05 March 1976
• Docket Number: Civ. No. 73-609.
• Citation: 410 F. Supp. 1283
• Parties: Joseph L. MILLER, Jr., et al., Plaintiffs, v. Wright MALLERY et al., Defendants.
• Court: U.S. District Court — District of Oregon

410 F. Supp. 1283

Joseph L. MILLER, Jr., et al., Plaintiffs, v. Wright MALLERY et al., Defendants.

Civ. No. 73-609.

United States District Court, D. Oregon.

March 5, 1976.

Charles J. Merten, Portland, Or., for plaintiffs.

Jack G. Collins, Portland, Or., for federal defendants.

OPINION

BURNS, District Judge.

Plaintiffs filed this class action to challenge Forest Service practices in the Bull Run Watershed area. Five claims were made: 1) breach of the public trust; 2) Bull Run Trespass Act, 18 U.S.C. § 1862; 3) Organic Act, 16 U.S.C. § 476; 4) National Environmental Policy Act, 42 U.S.C. § 4321; 5) Multiple-Use Sustained-Yield Act, 16 U.S.C. § 528. Jurisdiction is claimed under 28 U.S.C. §§ 1331, 1337, 1361, and 5 U.S.C. §§ 701-706.

Having determined that the action should be maintained as a class action and having provided for appropriate notice to the class, I segregated the second claim for separate trial. Rule 42 F.R. Civ.P. All counsel agreed that the issues involved were relatively narrow and that resolution of this claim could, if plaintiffs prevailed, make unnecessary further proceedings on the other claims. Plaintiffs' second claim is that the logging program of the Forest Service, both inside and outside the watershed, and the recreation permitted in a section of the Reserve outside the watershed, are impermissible in light of the Trespass Act, 18 U.S.C. § 1862. After trial in January, 1975, extensive briefs were filed by plaintiffs and by federal defendants, as well as some of the other defendants. Later, I requested additional briefing on certain aspects, including the principle of administrative construction. These briefs were supplemented by oral argument in late October, 1975. The work by counsel — particularly the briefs submitted — has been outstanding, exemplifying the highest professional standards of performance. I am grateful to them, and express this note of appreciation.

I. THE BULL RUN RESERVE AND WATERSHED:

Water for the City of Portland comes from the Bull Run watershed, a physically defined area of 67,329 acres that lies almost entirely within the 142,080 acres of the legally defined Bull Run Reserve. (See the appended map.) The Reserve is roughly triangular, about sixteen miles on a side, and lies on the west side of the Cascade Range along the Bull Run River east of Portland and slightly northwest of Mt. Hood.

By proclamation of June 17, 1892, 27 Stat. 1027, President Benjamin Harrison exercised the authority given him in § 24 of the Act of March 3, 1891, 26 Stat. 1095, to "reserve from entry or settlement and set apart as a public reservation" the lands now known as the Bull Run Reserve. Other lands were combined with the Reserve, Executive Order (EO) 864, June 30, 1908, and the whole was named the Oregon National Forest. That name was changed to Mt. Hood National Forest in 1924, EO 3944, January 21, 1924.

Administered originally by the Department of the Interior, the Reserve has since 1905 been administered by the Forest Service in the Department of Agriculture. 33 Stat. 628 (1905). The federal defendants are officials of the Forest Service. Mallery is Supervisor of the Mt. Hood National Forest. Stockbridge is District Ranger of the Columbia Gorge Ranger District; Olsen of the Zig Zag Ranger District; and Mueller of the Hood River Ranger District. Schlapfer is the Regional Forester of the Pacific Northwest Region (Region Six). The private defendants are corporations or individuals with contract purchaser rights under outstanding unexecuted timber-sale contracts with the United States for timber in the Reserve. In addition, I permitted intervention by Clackamas County. Rule 24 F.R.Civ.P.

A small part of the watershed is not within the Reserve. Removed from the Reserve by proclamation of June 30, 1911, 37 Stat. 1704, this part passed into private ownership but has since been re-acquired by the United States and is now a part of the Mt. Hood National Forest. Within the watershed, approximately 3,980 acres are owned by the City of Portland and approximately 780 by Defendant Publishers Paper. About 4,000 acres within the Reserve had been granted to the Oregon & California Railroad Company; two years after the O & C lands were revested in the United States, 39 Stat. 221 (1916), those within the Reserve were reserved and set aside as part of the Oregon National Forest, 40 Stat. 1015 (1918).

Logging apparently began in the Reserve in 1935 with a small blowdown logging operation, on city owned land, involving about 40 acres. From then, until 1955, it was desultory, and apparently limited to a very few selective, blowdown and other salvage type operations. The years from 1954 to 1958 showed some increase, while since 1958, large-scale ongoing commercialized sustained-yield logging has increased tremendously. Since 1958, a total of 870,000,000 board feet have been cut — 579,000,000 inside the watershed and 291,000,000 inside the Reserve but outside of the watershed.¹ Nearly three hundred miles of roads have been constructed. On June 30, 1974, 72 timber sales were active in the Reserve and additional sales were planned for the future (Statement of Agreed Facts, filed January 22, 1975).

The statute involved in this claim refers to "the reserve known as Bull Run National Forest." 18 U.S.C. § 1862. Defendants Champion International and Louisiana Pacific have argued that "there is no such place." That description appeared in the 1909 codification and was carried over in 1948. Whether or not an indictment in that language would be sustainable, I am satisfied the description is adequate for the civil purposes of this lawsuit. It is not unconstitutionally vague, McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), nor was any express intent to change the substance indicated. Fourco Glass Co. v. Transmirra Corp., 353 U.S. 222, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957). The "Bull Run National Forest" of § 1862 is the land described in the Presidential proclamation of 1892, 27 Stat. 1027, less the piece removed in 1911, 37 Stat. 1704.

II. THE BULL RUN TRESPASS ACT:

The statute forming the basis for plaintiffs' second claim was enacted in 1904 as An Act For the Protection of the Bull Run Forest Reserve and the sources of the water supply of the City of Portland, State of Oregon, ch. 1774, 33 Stat. 526. The text was:

"That from and after the date of the passage of this Act it shall be unlawful for any person or persons, except forest rangers and other persons employed by the United States to protect the forest, and Federal and State officers in the discharge of their duties, and the employees of the water board of the city of Portland, State of Oregon, to enter, for the purpose of grazing stock, or for any purpose whatsoever, upon any part of the reserve known as the Bull Run Forest Reserve, in the Cascade Mountains, in the State of Oregon, which reserve was established by proclamation of the President of the United States in eighteen hundred and ninety-two, as provided by section twenty-four of an Act of Congress entitled `An Act to repeal timber-culture laws, and for other purposes,' approved March third, eighteen hundred and ninety-one, and which reserve includes within its area the water supply of the city of Portland, State of Oregon; and any person or persons, save those hereinbefore excepted, who shall engage in grazing stock, or who shall permit stock of any kind to graze within said Bull Run Forest Reserve, or who shall enter upon said forest reserve, or be found therein or in any part thereof knowingly trespass thereon, shall be deemed guilty of a misdemeanor, and on conviction thereof in the district court of the United States for the district of Oregon shall be fined not to exceed five hundred dollars, in the discretion of the court. And the Secretary of the Interior is hereby authorized and directed to enforce the provisions of this Act by all proper means at his command, and to exclude from said forest reserve stock of all kinds and all persons, save as hereinbefore excepted." (Material in brackets deleted, and material emphasized added by amendment.)

As adopted, the Act incorporates two amendments, one from the Senate and one from the House. Apparently concerned about the harshness of a criminal penalty (a $500 fine) for innocent wandering onto the Reserve, Senator Pettus suggested that "or for any purpose whatsoever" be stricken after the phrase "for the purpose of grazing stock." The amendment was agreed to. 38th Cong. Rec. 3028 (1904). On the House side, the Committee on Public Lands recommended that "enter upon said forest reserve, or be found therein or in any part thereof" be replaced by the more concise and somewhat less strict "knowingly trespass." That amendment was also agreed to, 38th Cong. Rec. 5250 (1904).

In the 1909 codification of statutes, the 1904 Act appeared this way:

"Whoever, except forest rangers and other persons employed by the United States to protect the forest, federal, and state officers in the discharge of their duties, and the employees of the water board of the city of Portland, State of Oregon, shall knowingly trespass upon any part of the reserve known as Bull Run National Forest, in the Cascade Mountains, in the State of Oregon, or shall enter thereon for the purpose of grazing stock, or shall engage in grazing stock thereon, or shall permit stock of any kind to graze thereon, shall be fined not more than five hundred dollars, or imprisoned not more than six months, or both." 35 Stat. 1099.

Congress had, however, affirmatively expressed an intention not to change the meaning of the Act except in minor, specified ways:

"While the language of the Act revised in this section has been transposed and the redundant matter omitted, the only change made in the section consists in the addition of imprisonment as part of the punishment, or both. The last sentence of the act directing the Secretary of the Interior to enforce its

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