National Forest Preservation Group v. Butz, 2146.
| Decision Date | 23 May 1972 |
| Docket Number | No. 2146.,2146. |
| Citation | 343 F. Supp. 696 |
| Parties | NATIONAL FOREST PRESERVATION GROUP, a Montana non-profit corporation, and Lester C. Baldwin, Plaintiffs, v. Earl L. BUTZ, individually and as Secretary of Agriculture, et al., Defendants, Big Sky of Montana, Inc., and Burlington Northern, Inc., Intervening Defendants. |
| Court | U.S. District Court — District of Montana |
James H. Goetz, Bozeman, Mont., for plaintiffs.
Roy E. Murray, Jr., Asst. U. S. Atty., Butte, Mont., for the government.
Gerald Fish, Atty., Land and Natural Resources Division, Department of Justice, Washington, D. C., Cale Crowley Billings, Mont., J. David Penwell, Gen. Counsel, Gellatin Gateway, Mont., for Big Sky of Montana, Inc.
Kendrick Smith and Dolphy Pohlman, Jr., Butte, Mont., of Corette, Smith & Dean, Butte, Mont., Richard V. Wicka, Asst. Gen. Counsel, St. Paul, Minn., for Burlington Northern.
Along with their Amended Complaint, plaintiffs filed herein a Motion for a Preliminary Injunction and Temporary Restraining Order to enjoin the Secretary of Agriculture and the other defendants from patenting to Burlington Northern, Inc., lands owned by the United States and which are the subject of Gallatin National Forest—Burlington Northern Inc. Land Exchanges 2 and 3.
Burlington Northern, Inc. and Big Sky of Montana, Inc., separately moved for leave to intervene on behalf of defendants under the provision of Rule 24, F.R.Civ.P. and tendered their separate Answers along with various Motions. There was no objection to the request of Burlington Northern Inc. to intervene, but plaintiffs objected to the request of Big Sky. Upon the showing made, the court in its discretion ordered that both motions for leave to intervene were granted, and the interveners hereafter will be included in any reference to defendants.
All defendants moved to dismiss the action for failure of the amended complaint to state a claim upon which relief can be granted, and upon the further ground that Congress by statute vested in the Secretary of Agriculture the exclusive permissive discretion to make the land exchanges complained of by reason of which the matter is exempt from judicial review under the provisions of 5 U.S.C. Section 701(a) (1) (2). The United States has asked that its memorandum in opposition to the motion for preliminary injunction be considered a motion for summary judgment, which the court does. An additional ground presented by defendants Burlington Northern and Big Sky was that the plaintiffs do not have a sufficient legal interest in the exchange to have any standing to sue. The court received evidence on that issue, ruled that plaintiffs have sufficient standing to sue for the limited purpose of determining from the administrative record whether the Secretary acted in an arbitrary, capricious or illegal manner, or whether or not there is competent, substantial evidence to support his decision.
All defendants likewise requested the court to take judicial notice of the administrative records to be considered along with any and all other evidence received by the court and, under the provisions of Rule 12(b) F.R.C.P. to treat the defense motions to dismiss as motions for summary judgment under Rule 56 F.R.C.P.
Plaintiffs moved for a partial summary judgment on the issues raised in Claim Three of plaintiff's complaint.
Upon agreement of all parties, and without objection, all motions of all parties came on regularly for hearing before the court at Butte, Montana, at 9:30 A.M. on May 18, 1972. At the request of plaintiffs and defendants, and agreed to by all parties, the complete administrative records of the proceedings in boxes marked as Exhibits "A" through "E" inclusive were received in evidence for consideration by the court with respect to all motions. In addition, the court received affidavits and oral evidence presented by plaintiffs on the issue of standing to sue, along with an affidavit of Big Sky opposing the motion for a restraining order.
In Gallatin and Madison Counties, Montana, are located the Beaverhead National Forest and the Gallatin National Forest. An area now classified as the Spanish Peaks Primitive Area is located within the Gallatin National Forest. The United States Forest Service has proposed an expansion of the boundaries of that Primitive Area, and that the expanded area be classified as Wilderness. Legislation pending before Congress provides for an expansion of the same area, and that it be classified as a Wilderness Area. To the southwest, southeast and south of those areas, and within the Gallatin National Forest, there is a substantial checkerboard pattern of ownerships. Even-numbered sections are owned by the United States. Numerous odd-numbered sections are owned in fee by Burlington Northern stemming from the Northern Pacific Land Grant Act of 1864 and the Joint Resolution of May 31, 1870. South of the Spanish Peaks Primitive Area, and located as a solid buffer between both that area and the extensions proposed for future classification as a Wilderness Area, are lands presently owned in fee by Big Sky and other persons. Part of the lands proposed to be conveyed by the United States to Burlington Northern in Exchange No. 3 are immediately south of this buffer zone, and the lands proposed to be conveyed by the United States to Burlington Northern in Exchange No. 2 are still further south. Some of the area in which the proposed exchange from the United States is located has already been logged off, and there are numerous public and service or logging roads through it.
The decision of the Secretary of Agriculture of April 20, 1972, reflects the record that Exchanges Nos. 2 and 3 are part of a long-range land exchange program first developed in 1958 by the Forest Service and with the Northern Pacific Railway Co., the predecessor of Burlington Northern. The need for such a program stemmed from the pattern of "checkerboard" land ownerships within National Forest areas.
In Exchange No. 2, the Burlington Northern agreed to convey and has conveyed, to the United States a total 11,859 acres (approximately 18.5 sections). Of that amount 1,950 acres (approximately 3 sections, although physically located in different sections) are located within the exterior of the territorial boundaries of Yellowstone National Park. An additional 1,700 acres of that 11,854 acres in Exchange No. 2 (approximately 2.6 sections) are located within the Spanish Peaks Primitive Area where it borders on the Beaverhead National Forest, and within the boundaries of the expanded area proposed to be classified as Wilderness.
In return, the United States has agreed to patent to Burlington Northern in Exchange No. 2, 5,780 acres (approximately 9.3 sections) none of which is located within nor contiguous to the presently classified Spanish Peaks Primitive Area, nor within nor contiguous to any area proposed to be classified as Wilderness.
In Exchange No. 3, Burlington Northern has agreed to convey, and has conveyed, to the United States a total of 9,620 acres (approximately 15 sections). Of that acreage 1,280 acres (approximately 2 sections) are within the area now classified as Spanish Peaks Primitive Area, and proposed to be in Wilderness. The United States has agreed to convey 4,457 acres (approximately 7 sections) in Exchange No. 3 to Burlington Northern, none of which is located within nor contiguous to any presently classified Primitive or proposed Wilderness area.
In other words, in the course of a long established, comprehensive, managerial policy, the United States agreed to convey to Burlington Northern a total of 10,243 acres (about 16 sections) all of which are within National Forest Boundaries, and none of which are within nor contiguous to either a Primitive area, nor any area proposed to be Wilderness. In return the United States has received more than twice that acreage totaling some 33.5 sections of which 7.6 sections are located either within Yellowstone National Park or within areas now classified as Primitive or proposed to be Wilderness, and 26 sections are within National Forest boundaries. The administrative record clearly reflects that all of this is the result of a long-standing managerial policy of the Department of Agriculture. The lands were carefully appraised on more than one occasion following the same standard appraisal procedures of the Department customarily followed by the Department in other exchanges nationwide, and there was an administrative determination based on competent, substantial evidence that the United States is receiving lands of equal value. In this connection the Secretary's decision of April 20, 1972, signed by Acting Secretary of Agriculture J. Phil Campbell, Forest Service Docket Nos. 193, et. al., Vol. XI at page 2, footnote 2 points out the statutory authority under which these land exchanges were processed:
Plaintiffs assert non-compliance with the National Environmental Policy Act. Initial studies pertaining to an overall land adjustment plan for this area commenced in 1967 (Secretary's Decision, pp. 2) before the Act became law; the environmental impact study was commenced in 1970. A draft of the statement was submitted to the various Federal and State Agencies involved with environmental problems, as well as to interested private organizations and citizens including members of plain...
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National Forest Preservation Group v. Butz
...are sufficient to confer standing. 405 U.S. at 734, 92 S.Ct. 1361. The plaintiffs have standing. II. MOOTNESS The district court, 343 F.Supp. 696, granted the defendants summary judgment on May 23, 1972, and that same day refused NFPG's request for an injunction pending appeal. Two days lat......
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Big Hole Ranchers Ass'n v. US Forest Service
...any non-wilderness activities within the contiguous areas, the Parker decision has no application. See, National Forest Preservation Group v. Butz, 343 F.Supp. 696, 702 (D.Mont.1972), reversed on other grounds, 485 F.2d 408 (9th Furthermore, the Parker decision only applies to roadless area......