Parker v. United States, Civ. A. No. C-1368.

• Decision Date: 24 December 1969
• Docket Number: Civ. A. No. C-1368.
• Citation: Parker v. United States, 307 F.Supp. 685 (D. Colo. 1969)
• Parties: Robert W. PARKER et al., Plaintiffs, v. UNITED STATES of America; Clifford Hardin, individually and as Secretary of Agriculture of the United States; Edward P. Cliff, individually and as Chief, United States Forest Service; David S. Nordwall, individually and as Regional Forester; James O. Folkestad, individually and as Supervisor, White River, National Forest, United States Department of Agriculture and Kaibab Industries, an Arizona Corporation, Defendants.
• Court: U.S. District Court — District of Colorado

307 F. Supp. 685

Robert W. PARKER et al., Plaintiffs, v.UNITED STATES of America; Clifford Hardin, individually and as Secretary of Agriculture of the United States; Edward P. Cliff, individually and as Chief, United States Forest Service; David S. Nordwall, individually and as Regional Forester; James O. Folkestad, individually and as Supervisor, White River, National Forest, United States Department of Agriculture and Kaibab Industries, an Arizona Corporation, Defendants.

Civ. A. No. C-1368.

United States District Court D. Colorado.

December 24, 1969.

H. Anthony Ruckel, Richard D. Lamm, Tom W. Lamm, William A. Hillhouse, II, Roger P. Hansen, James R. Wade, Denver, Colo., Lawrence B. Robinson, Donald M. Carmichael, Boulder, Colo., for plaintiffs.

Dawson, Nagel, Sherman & Howard, by W. David Pantle, Denver, Colo., by special appearance for plaintiffColorado Magazine, Inc.

James L. Treece, U. S. Atty., James R. Richards, Asst. U. S. Atty., Denver, Colo., by Nelson H. Grubbe, Atty., U. S. Dept. of Justice, Washington, D. C., for defendants.

Holme, Roberts & Owen, by Donald C. McKinlay, Denver, Colo., Jennings, Strouss, Salmon & Trask, by Thomas J. Trimble, Phoenix, Ariz., for defendant Kaibab Industries.

John H. Tippit, Denver, Colo., Davies, Biggs, Strayer, Stoel & Boley, by James P. Rogers, Portland, Ore., for intervenorWestern Wood Products Association.

MEMORANDUM OPINION AND ORDER

WILLIAM E. DOYLE, District Judge.

Plaintiffs bring this action seeking a declaratory judgment that a proposed sale of timber by defendants in the East Meadow Creek Area of White River National Forest, Colorado, is unlawful.They further seek to enjoin the named defendants from selling the timber until such time as certain required studies and investigations are made concerning the propriety of the timber sales and the applicability of the Wilderness Act, 16 U.S.C. § 1131 et seq., to East Meadow Creek.

East Meadow Creek is contiguous to the Gore Range Eagles Nest Primitive Area, both of which are located in White River National Forest.The United States Forest Service contracted with defendant Kaibab Industries for the sale to the latter of approximately 4.3 million board feet of timber located in the East Meadow Creek Area.Plaintiffs claim that the procedures required by the Multiple Use-Sustained Yield Act, 16 U.S.C. § 528 et seq. and the Wilderness Act, 16 U.S.C. § 1131 et seq. were not met, and hence the same is unlawful and should be enjoined.

Defendants United States of America and Kaibab Industries and the Intervenor, Western Wood Products Association, have moved for summary judgment on the grounds that: (1) the matter of timber sales is within the discretion of certain executive officers and hence is not subject to judicial review; (2)plaintiffs have no standing to challenge the proposed timber sale; (3) this is an unconsented suit against the government and hence barred by sovereign immunity; (4) an injunction would not serve to protect the area because mining claimants would still have the right to remove timber; and (5) there is no material issue of fact presented and defendants are entitled to prevail as a matter of law.These issues have been briefed and argued and considered.We conclude that the motion for summary judgment must be denied.

Defendants raise two threshold contentions.First, that the plaintiffs have no standing to question either the decision or the procedures of the Forest Service since they would not be, according to the argument, aggrieved by an adverse decision.Second, defendants urge that this is an unconsented suit against the government and is thus barred by the doctrine of sovereign immunity.Inasmuch as these are legal questions which, if decided adversely to plaintiffs would terminate the litigation, we are called upon to consider them before reaching the inquiry of whether there are genuine issues of fact to be tried.

As to the standing of the plaintiffs, we note that among the persons bringing this action are several residents and property owners in the nearby town of Vail, Colorado; a guide who conducts wilderness trips into East Meadow Creek; the Eagles Nest Wilderness Committee, Colorado Open Space Coordinating Council, and the Sierra Club, conservation groups; the town of Vail; and Colorado Magazine.Under 5 U.S.C. § 702, any person "adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."The Multiple Use-Sustained Yield Act, 16 U.S.C. § 528 and the Wilderness Act, 16 U.S.C. § 1131, and the required procedures thereunder, were in part designed to protect the public interest in the preservation of the scenic and recreational aspects of certain public lands.It cannot be denied that plaintiffs are advancing the public interest; also they have special interest in the values which Congress sought to protect by enacting the above mentioned statutes.We conclude that these statutes confer on groups and individuals such as the plaintiffs the status of "aggrieved persons" when the Secretary of Agriculture or the Forest Service fails to comply with the mandatory requirements of the Acts.See, e. g.,Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608(2d Cir.1965), cert. denied, Consolidated Edison Co. of New York Inc. v. Scenic Hudson Preservation Conference384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540(1966);Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994(1966);Sierra Club v. Hickel, No. 51464(N.D. Cal., July 23, 1968).

We turn now to the argument that this is an unconsented suit against the government which is barred by the doctrine of sovereign immunity.The Supreme Court has recognized that the applicability of this doctrine is not dependent upon the denomination of the partydefendant.Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628(1949)....