Sierra Club v. Hardin

• Decision Date: 21 May 1971
• Docket Number: Civ. No. A-16-70.
• Citation: 325 F. Supp. 99
• Parties: SIERRA CLUB, a non-profit California corporation; Sitka Conservation Society, an unincorporated association; and Carl Lane, Plaintiffs, v. Clifford HARDIN, individually, and as Secretary of Agriculture of the United States, Edward P. Cliff, individually, and as Chief, U. S. Forest Service, W. H. Johnson, individually, and as Regional Forester, Region 10, United States Forest Service, Vincent N. Olson, individually, and as Forest Supervisor, North Tongass National Forest, Walter J. Hickel, individually, and as Secretary of Interior of the United States; and U. S. Plywood-Champion Papers, Inc., and the State of Alaska, Defendants.
• Court: U.S. District Court — District of Alaska

325 F. Supp. 99

SIERRA CLUB, a non-profit California corporation; Sitka Conservation Society, an unincorporated association; and Carl Lane, Plaintiffs, v. Clifford HARDIN, individually, and as Secretary of Agriculture of the United States, Edward P. Cliff, individually, and as Chief, U. S. Forest Service, W. H. Johnson, individually, and as Regional Forester, Region 10, United States Forest Service, Vincent N. Olson, individually, and as Forest Supervisor, North Tongass National Forest, Walter J. Hickel, individually, and as Secretary of Interior of the United States; and U. S. Plywood-Champion Papers, Inc., and the State of Alaska, Defendants.

Civ. No. A-16-70.

United States District Court, D. Alaska.

March 25, 1971.

As Amended April 6, 1971.

Second Amendment April 8, 1971.

Third Amendment April 16, 1971.

Fourth Amendment May 21, 1971.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Warren W. Matthews, Jr., of Matthews & Dunn, Anchorage, Alaska, for plaintiffs.

Nelson H. Grubbe and Frederick L. Miller, Jr., Washington, D. C., Douglas B. Baily, U. S. Atty., Anchorage, Alaska, for Federal defendants.

Charles K. Cranston, Anchorage, Alaska, for State of Alaska.

Manley B. Strayer and James P. Rogers, of Davies, Biggs, Strayer, Stoel & Boley, Portland, Or., C. Girard Davidson, of Davidson, Engstrom & Henri, Juneau, Alaska, for U. S. Plywood-Champion.

OPINION

PLUMMER, Chief Judge.

I. Jurisdiction of the Court.

This action was brought to enjoin the sale of timber located in the Tongass National Forest and the patent of national forest land for use in the processing of timber harvested pursuant to an agreement between the United States and U. S. Plywood-Champion Papers, Inc. (hereinafter referred to as U.S.P.). Jurisdiction to review the Secretary of Agriculture's decision is conferred by the Administrative Procedure Act, 5 U.S.C.A. § 702 (1967),¹ and 28 U.S.C.A. § 1361 (Supp.1970).² Jurisdiction under both statutes is without regard to any amount in controversy.³ Standing of the plaintiffs to challenge the Secretary's actions under these jurisdictional statutes is discussed infra.

II. Parties.

Plaintiff Sierra Club is a non-profit corporation dedicated to the protection and conservation of the natural and scenic resources of the United States, particularly those of the western United States, including the State of Alaska. It is organized and operates under the laws of the State of California, with its principal place of business in San Francisco, California. It has a national membership of approximately 100,000 persons, including 300-400 members in the State of Alaska. The Alaska Chapter has its principal place of business in Anchorage, with organized groups in Juneau, Sitka and Fairbanks. In the Juneau area, adjacent to the timber sale, there are approximately eighty Sierra Club members, many of whom enjoy the timber sale area for scenic and recreational purposes such as hunting, fishing, camping, hiking and canoeing. To a lesser extent, the local members utilize the Berners Bay proposed mill site for similar purposes.

Plaintiff Sitka Conservation Society is an unincorporated affiliate of the Alaska Conservation Society, a state-wide non-profit conservation organization. Its 20-40 members are all residents of the Sitka area, which is, at its closest point, more than 28 miles from the sale area. Like the Juneau members of the Sierra Club, members of the Sitka Conservation Society have on occasion used the proposed sale area and mill site for their personal enjoyment.

Plaintiff Carl Lane is a registered master guide and Sierra Club member who conducts hunting, fishing, sightseeing and photography expeditions for hire into portions of the contract area from his Juneau base of operations. Although he has earned more than $10,000 income in each of the last five years from trips within the sale area, he readily admits that his operations could be shifted should the timber sale be approved.

As the land involved is part of the public domain, none of the plaintiffs has expended any money on improvements in or near the contract area.

Federal defendants, who will be referred to collectively as the "Secretary," include Clifford Hardin, Secretary of the Department of Agriculture, in his capacity as overall administrator of the national forests, Edward P. Cliff, Chief of the Forest Service, who is authorized to make timber sales, W. H. Johnson, Regional Forester for the Alaska Region, which includes the North Tongass National Forest, who is authorized to execute timber sale contracts and related documents, and Vincent N. Olson, Forest Supervisor for the North Tongass National Forest, who is authorized to administer and plan for the use and occupancy of the North Tongass National Forest. Walter J. Hickel, Secretary of the Department of Interior, was also named as a party defendant.

Orders were entered permitting the intervention of U. S. Plywood-Champion Papers, Inc. and the State of Alaska (hereinafter referred to as State), which is the potential recipient of 25 percent of the sale proceeds, as indispensable parties pursuant to Rule 24(a) of the Federal Rules of Civil Procedure.

In response to a motion filed by U.S.P. this case was designated a class action with plaintiffs representing all persons interested in the conservation, preservation and use of the national parks, game refuges, forests, natural and scenic resources and wildernesses, including the air, water, watersheds, wildlife, fish, and all other aesthetic and recreational values of the Tongass National Forest in the State of Alaska. A motion for leave to intervene on behalf of several other conservation groups was denied without prejudice pursuant to Rule 24(a) of the Federal Rules of Civil Procedure on the ground that their interests were fairly and adequately represented by plaintiffs of record.

Amicus curiae briefs were filed by the Alaska Loggers Association, the Alaska Territorial Sportsman, and the City and Borough of Juneau, Alaska.

III. Events leading to the institution of this action.

On or about September 20, 1965, defendant W. H. Johnson, Regional Forester for Region 10 of the United States Forest Service, published in a Juneau newspaper of general circulation public notice of sale of an estimated 8,740,000,000 undesignated board feet of North Tongass National Forest timber.⁴ The notice of sale and related sale documents contained a requirement that the successful bidder install a mill within or adjacent to the sale area for the manufacture of pulp which, together with associated facilities for the manufacture of wood products, should have an annual log requirement of at least 175,000,000 board feet over a fifty year period.

The public sale was held as advertised on December 17, 1965. St. Regis Paper Company was declared the successful bidder and, after posting a $100,000 security deposit, was granted tentative award of the contract. The bid price was $6.54 per thousand board feet for Sitka Spruce and $5.10 per thousand board feet for Western Hemlock, or a weighted average price for all species of $5.65 per thousand board feet.⁵ The only other bidder was the corporate predecessor of U. S. Plywood-Champion Papers, Inc., which bid an average price of $5.60 per thousand board feet. The bid price was subject to redetermination every five years after July 1, 1971, the date specified in the contract for completion of the processing facilities.

On April 6, 1967, St. Regis Paper Company advised the federal defendants that it would not complete the actions necessary to be granted final award of the contract. Thereafter, on August 17, 1967, the federal defendants made the first of several private offers of the sale contract to U.S.P. Another such offer was made on January 18, 1968, and on February 9, 1968, the federal defendants committed themselves to U.S.P.; the Juneau Unit Sale was subsequently finalized on September 12, 1968. The contract provisions, including the price to be paid for the timber, are identical to the terms offered to St. Regis in 1965, except that the completion date for the mill is now July 1, 1973, and the five-year rate redeterminations called for are likewise advanced to July 1, 1978 and five-year periods thereafter.

No appeal having been taken to the Secretary from the execution of the contract, U.S.P. commenced performance, moving executives and staff personnel to Juneau, the headquarters of a newly formed "Alaska Division." The division, in conjunction with outside technical organizations and engineers, undertook the initial project engineering, setting up schedules for contract commitments and the like. The overhead expense of the Juneau office, including salaries, exceeds $100,000 a month. Up to the time of trial, U.S.P. had spent, or committed itself to spend, more than $3,000,000 in performance of the agreement.

During the period following the execution of the sale agreement, U.S.P. executed a contract with Kanzaki Paper Manufacturing Company, Ltd., of Tokyo, Japan, dated February 18, 1969, which commits U.S.P. to sell, and Kanzaki to buy, all of the output of the pulp mill and sawmill for a period of 15 years from the date of commencement of production.

The first priority of the Alaska Division was selection of a site for the mill required by the contract. Economic factors narrowed the practical consideration to Katlian Bay near Sitka, and Berners Bay—Echo Cove, situated just north of Juneau. On August 11, 1969, U.S.P. appointed a blue-ribbon environmental panel to investigate the impact of the proposed mill on the ecosystems of the two bays. On December 10, 1969 the panel reported that the Berners Bay site was most favorable from an ecological standpoint.⁶

On April 24, 1970, approximately two months after the initiation of this suit challenging the validity of the 1968 timber sale, the Forest Service issued a special use permit to U.S.P. for construction of the mill on 201.22 acres of...