Montana Wilderness Ass'n v. U.S. Forest Service, 80-3374
| Decision Date | 19 August 1981 |
| Docket Number | No. 80-3374,80-3374 |
| Citation | 655 F.2d 951 |
| Parties | , 11 Envtl. L. Rep. 20,521 MONTANA WILDERNESS ASSOCIATION, NINE QUARTER CIRCLE RANCH, and the Wilderness Society, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, John McGuire, its chief; Lewis Hawkes, Gallatin National Forest Supervisor; United States Fish and Wildlife Service; Harry Willoughby, its regional director; Burlington Northern, Inc., a Delaware corporation; Bob Bergland, Secretary of Agriculture, Defendants-Appellees, and The National Forest Products Association, Intervening Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James H. Goetz, Goetz & Madden, Bozeman, Mont., for plaintiffs-appellants.
David Booth Beers, Washington, D.C., argued, for intervening defendant-appellee; Richard S. Wasserstrom, S. Elizabeth Gibson, William N. Eskridge, and Jeffrey C. Martin, Washington, D.C., on brief.
David Booth Beers, Washington, D.C., argued, for intervening defendant-appellee; Richard S. Wasserstrom, S. Elizabeth Gibson, William N. Eskridge, and Jeffrey C. Martin, Washington, D.C., on brief
Kurt W. Kroschel, Billings, Mont., Dirk D. Snel, Washington, D. C., argued, for defendants-appellees; Rick Anderson, Butte, Mont., Kurt W. Kroschel, Billings, Mont., James G. Watt, Denver, Colo., James W. Moorman, Washington, D. C., on brief.
Appeal from the United States District Court for the District of Montana.
Before ANDERSON and NORRIS, Circuit Judges, and SCHWARZER, * District Judge.
Environmentalists and a neighboring property owner seek to block construction by Burlington Northern of roads over parts of the Gallatin National Forest. They appeal from a partial summary judgment in the district court granting Burlington Northern a right of access to its totally enclosed timberlands. Montana Wilderness Association v. United States Forest Service, 496 F.Supp. 880 (D.Mont.1980). The district court held that Burlington Northern has an easement by necessity or, alternatively, an implied easement under the Northern Pacific Land Grant of 1864. Id. at 883-88. The defendants argue that the Alaska National Interest Lands Act of 1980, passed subsequent to the district court's decision, also grants Burlington Northern assured access to its land. The appellants contend that the doctrine of easement by necessity does not apply to the sovereign, that there was no implied easement conveyed by the 1864 land grant, and that the access provisions of the Alaska Lands Act do not apply to land outside the state of Alaska. We conclude that the Alaska Lands Act does grant access to Burlington Northern. We therefore affirm the partial summary judgment and remand the case for further proceedings.
Defendant-Appellee Burlington Northern, Inc. owns timberland located within the Gallatin National Forest southwest of Bozeman, Montana. This land was originally acquired by its predecessor, the Northern Pacific Railroad, under the Northern Pacific Land Grant Act of 1864, 13 Stat. 365. The Act granted odd-numbered square sections of land to the railroad, which, with the even-number sections retained by the United States, formed a checkerboard pattern. 1
To harvest its timber, Burlington Northern in 1979 acquired a permit from defendant-appellee United States Forest Service, allowing it to construct an access road across national forest land. The proposed roads would cross the Buck Creek and Yellow Mules drainages, which are protected by the Montana Wilderness Study Act of 1977, Pub.L. 95-150, 91 Stat. 1243, as potential wilderness areas. The proposed logging and road-building will arguably disqualify the areas as wilderness under the Act.
The plaintiffs, Montana Wilderness Association, The Wilderness Society, and Nine Quarter Circle Ranch, having contested the granting of the permit, filed suit after it was granted, seeking declaratory and injunctive relief. A temporary restraining order was granted. Before the scheduled preliminary injunction hearing, the Forest Service suspended the permit and submitted the legal question of Burlington Northern's right of access to the Attorney General. The case lay dormant until Attorney General Civiletti issued his opinion. Op. Att'y Gen., slip at 1 (June 23, 1980). Of the three theories given in support of Burlington Northern's right of access, the Attorney General rejected two that there is a right of access under the Forest Service Organic Administrative Act of 1897, 16 U.S.C. § 478, and that Burlington Northern has an easement by necessity but left open the issue whether Burlington Northern has an implied easement under the Northern Pacific Land Grant of 1864.
After the Attorney General's opinion was issued, the Forest Service reconsidered the case, and reinstated the permit on the grounds that Burlington Northern had an assured right of access under the 1864 land grant. 2 The parties immediately filed cross-motions for summary judgment on the assured access issue. The district court denied the plaintiffs' motion and granted the defendants' partial summary judgment motion. The order for partial summary judgment was designated as final for purposes of appeal pursuant to Fed.R.Civ.P. 54(b).
During the pendency of this appeal, construction of an access road through the Buck Creek drainage has proceeded to such an extent that it is unclear whether completion of the road will cause any more environmental damage than has occurred already. 3 In any case, the appeal is not moot because the construction of access roads through the Yellow Mules drainage has not yet begun.
The sole issue on appeal is whether Burlington Northern has a right of access across federal land to its inholdings of timberland. Appellees contend that the recently enacted Alaska National Interest Lands Conservation Act (Alaska Lands Act), Pub.L. No. 96-487, 94 Stat. 2371 (1980), establishes an independent basis for affirming the judgment of the district court. They argue that § 1323(a) of the Act requires that the Secretary of Agriculture provide access to Burlington Northern for its enclosed land.
Section 1323 is a part of the administrative provisions, Title XIII, of the Alaska Lands Act. Appellees argue that it is the only section of the Act which applies to the entire country; appellants argue that, like the rest of the Act, it applies only to Alaska. Section 1323 reads as follows:
Sec. 1323. (a) Notwithstanding any other provision of law, and subject to such terms and conditions as the Secretary of Agriculture may prescribe, the Secretary shall provide such access to nonfederally owned land within the boundaries of the National Forest System as the Secretary deems adequate to secure to the owner the reasonable use and enjoyment thereof: Provided, That such owner comply with rules and regulations applicable to ingress and egress to or from the National Forest System.
(b) Notwithstanding any other provision of law, and subject to such terms and conditions as the Secretary of the Interior may prescribe, the Secretary shall provide such access to nonfederally owned land surrounded by public lands managed by the Secretary under the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701-82) as the Secretary deems adequate to secure to the owner the responsible use and enjoyment thereof: Provided, That such owner comply with rules and regulations applicable to access across public lands.
This section provides for access to nonfederally-owned lands surrounded by certain kinds of federal lands. Subsection (b) deals with access to nonfederal lands "surrounded by public lands managed by the Secretary (of the Interior)." Section 102(3) of the Act defines "public lands" as certain lands "situated in Alaska." Subsection (b), therefore, is arguably limited by its terms to Alaska, though we do not find it necessary to settle that issue here. Our consideration of the scope of § 1323(a) proceeds under the assumption that § 1323(b) is limited to Alaska.
Subsection (a) deals with access to nonfederally-owned lands "within the boundaries of the National Forest System." The term "National Forest System" is not specifically defined in the Act.
The question before the court is whether the term "National Forest System" as used in § 1323(a) is to be interpreted as being limited to national forests in Alaska or as including the entire United States. We note at the outset that the bare language of § 1323(a) does not, when considered by itself, limit the provision of access to Alaskan land. We must look, however, to the context of the section to determine its meaning.
Elsewhere in the Act, Congress used the term "National Forest System" in a context which refers to and deals with national forests in Alaska. Title V of the Act is entitled "National Forest System." Section 501(a) states: "The following units of the National Forest System are hereby expanded ...." It is not unreasonable to read Section 1323(a) as referring to the "National Forest System" in the context in which it is used in Title V of the Act, rather than to all national forests in the United States.
Congress did, however, supply us with a general definition of the term in another statute. Pub. Law 93-378, 88 Stat. 480 (1974). 16 U.S.C. § 1609(a) states inter alia that:
Congress declares that the National Forest System consists of units of federally owned forest, range, and related lands throughout the United States and its territories, united into a nationally significant system dedicated to the long-term benefit for present and future generations, and that it is the purpose of their section to include all such areas into one integral system. The 'National Forest System' shall include all national forest lands reserved or withdrawn from the public domain of the United States, ....
Application of this definition to § 1323(a) would necessarily yield the conclusion that the section was intended to have...
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