West Virginia Highlands Conserv. v. Island Creek Coal Co., 15028.

• Decision Date: 06 April 1971
• Docket Number: No. 15028.,15028.
• Citation: 441 F.2d 232
• Parties: The WEST VIRGINIA HIGHLANDS CONSERVANCY, a non-profit corporation, Appellee, v. ISLAND CREEK COAL COMPANY, a corporation, and Frederick Dorrell, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

441 F.2d 232 (1971)

The WEST VIRGINIA HIGHLANDS CONSERVANCY, a non-profit corporation, Appellee, v.ISLAND CREEK COAL COMPANY, a corporation, and Frederick Dorrell, Appellants.

No. 15028.

United States Court of Appeals, Fourth Circuit.

Argued March 4, 1971.

Decided April 6, 1971.

Eva R. Datz, Atty., Dept. of Justice(Walter Kiechel, Jr., Acting Asst. Atty. Gen., Shiro Kashiwa, Asst. Atty. Gen., and Edmund B. Clark, Atty. Dept. of Justice, on brief), for appellants.

James W. Moorman, Washington, D. C.(Willis O. Shay, and Steptoe & Johnson, Clarksburg, W. Va., and Frederick R. Anderson, on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and WINTER and BUTZNER, Circuit Judges.

WINTER, Circuit Judge:

West Virginia Highlands Conservancy (Conservancy) sought a preliminary and permanent injunction against Frederick Dorrell, Forest Supervisor of the Monongahela National Forest, and Island Creek Coal Company(Island Creek) to halt certain mining and timber-cutting activities in the Otter Creek area of the Monongahela National Forest in order to preserve the wilderness characteristics of that area.Pending trial on the issue of permanent relief, the district judge granted a preliminary injunction, and both parties appealed.Island Creek, however, later dismissed its appeal, but Dorrell has proceeded, challenging the preliminary injunction on the grounds that Conservancy lacks standing to bring this action and that the district judge abused his discretion in granting interlocutory relief.We affirm.

I

Conservancy is a non-profit membership corporation dedicated to preserving natural, scenic and historic areas in the West Virginia highlands.It has over two hundred members who reside principally in West Virginia, Pennsylvania and the District of Columbia.It publishes a news letter and sponsors field trips for the pleasure and education of visitors to the highlands.One of its main concerns is the protection of an 18,000-acre area within the Monongahela National Forest known as the Otter Creek Basin.It has prepared a detailed study of the Ottor Creek drainage area, sponsored hikes along Otter Creek and organized meetings to discuss the future of Otter Creek.

Sometime in January, 1970, Dorrell, acting in his capacity as Forest Supervisor, prepared and submitted to the Regional Forester a plan for the administration of the Otter Creek area under the Multiple Use-Sustained Yield Act of 1960. 16 U.S.C.A. §§ 528, et seq.The plan provided that "a sustained yield of timber will be provided where compatible with the primary recreation, wildlife, and fish objectives."Opposed to any change in the wilderness characteristics of the Otter Creek area, Conservancy, pursuant to forestry regulations, filed a petition and appeal with the Regional Forester, challenging Dorrell's plan.In this petition, Conservancy alleged that Dorrell had exceeded his authority under the Multiple Use-Sustained Yield Act in certain aspects of his plan.Further, Conservancy strongly recommended that, as an alternative to Multiple Use administration, Otter Creek should be set aside as a study area for inclusion in the Wilderness System pursuant to provisions of the Wilderness Act of 1964. 16 U.S.C.A. §§ 1131, et seq.The Regional Forester subsequently denied the petition and appeal, but a further appeal to the Chief Forester is presently pending.

While Conservancy's petition was pending before the Regional Forester, Island Creek, allegedly the owner of mineral rights under the surface of the Otter Creek area, received permission from Dorrell to make some test drillings in the area.When Island Creek began building access roads for this purpose, Conservancy instituted this suit.In the district court Conservancy contended that Dorrell had no authority to allow Island Creek to proceed because the latter's mineral rights do not include the right to build such access roads.Further, Conservancy alleged that no mining or timber-cutting activities could be undertaken in the area without the submission of an "environmental impact statement," claimed to be required by § 102(2)(C) of the National Environmental Policy Act of 1969. 42 U.S.C.A. § 4332(2)(C).And finally, Conservancy alleged that Dorrell should not be permitted to take any action with respect to Otter Creek which was inconsistent with its wilderness characteristics until Conservancy's suggestion in this regard, advanced in the petition before the Regional Forester, had been finally determined.All of these issues await resolution in the district court.

II

Before us Dorrell contends first that Conservancy lacked standing to maintain an action challenging the administration of the Otter Creek area.

Under recent decisions of the Supreme Court, standing to challenge an administrative decision is present when the plaintiff alleges injury in fact and is seeking to protect an interest within the zone of interests protected by the statute or constitutional guarantee in question.Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184(1970);Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192(1970).¹Here, Conservancy alleged injury in terms of aesthetic, conservational and recreational values, injury which is generally recognized as sufficient to confer standing.Environmental Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093(1970);Citizens Committee for Hudson Valley v. Volpe, 425 F.2d 97(2 Cir.1970), cert. den., 400 U.S. 949, 91 S.Ct. 237, 27 L.Ed.2d 256(1970);Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608(2 Cir.1965), cert. den.Consolidated Edison Co. of New York v. Scenic Hudson Preservation Conference, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540(1966).Additionally, it is clear that Conservancy sought to protect the same conservational interests with which the National Environmental Policy Act and the Wilderness Act are concerned.

We are aware that the Ninth Circuit recently held that Sierra Club, a non-profit membership corporation having approximately 78,000 members nationally, which has taken a special interest in the conservation and sound maintenance of the national parks and forests, particularly lands on the slopes of the Sierra Nevada mountains, lacked standing to challenge a decision of the Secretary of the Interior to allow commercial development of a portion of Sequoia National Park.Sierra Club v. Hickel, 433 F.2d 24(9 Cir.1970).The court's conclusion was that neither the club nor its members possessed a sufficient interest for standing to be conferred because neither the club nor its members would be affected by the actions complained of other than through personal displeasure or distaste.It is significant that the Ninth Circuit distinguished Citizens Committee for Hudson Valley v. Volpe, supra, andParker v. United States, 307 F.Supp. 685(D.Colo.1969), from the case it was considering, upon the ground that "in both of these cases, * * * the Sierra Club was joined by local conservationist organizations made up of local residents and users of the area affected by the administrative action."433 F.2d at 33.

The decision in Sierra Club would thus seem to exclude a holding that Conservancy lacks standing because, as we have stated, Conservancy and its members have a special interest in the Otter Creek area.The area is one of the objects of their principal activities; they use it extensively, and they have studied it in detail.Their interest and the injury they would...