Wyoming Outdoor Coordinating Council v. Butz, Civ. No. 5834.

• Decision Date: 11 June 1973
• Docket Number: Civ. No. 5834.
• Citation: 359 F. Supp. 1178
• Parties: WYOMING OUTDOOR COORDINATING COUNCIL, et al., Plaintiffs. v. Earl L. BUTZ, in his official capacity as Secretary of the United States Department of Agriculture et al., Defendants.
• Court: U.S. District Court — District of Wyoming

359 F. Supp. 1178

WYOMING OUTDOOR COORDINATING COUNCIL, et al., Plaintiffs. v. Earl L. BUTZ, in his official capacity as Secretary of the United States Department of Agriculture et al., Defendants.

Civ. No. 5834.

United States District Court, D. Wyoming.

June 11, 1973.

Jack Speight, Cheyenne, Wyo., John R. Hursh, Riverton, Wyo., John D. Leshy and Toby Sherwood, Palo Alto, Cal., for plaintiffs.

Richard V. Thomas, U. S. Atty., D. Wyo., for defendants Earl L. Butz, John R. McGuire, Vernon O. Hamre and William J. Lucas.

Richard I. Leedy and James L. Hettinger, of Hettinger & Leedy, Riverton, Wyo., for defendant United States Plywood—Champion Papers, Inc.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

KERR, District Judge.

The Court having by its Order consolidated the hearing on the Application for the Preliminary Injunction with the trial on the merits, pursuant to the provisions of Rule 65(a)(2) of the Federal Rules of Civil Procedure, and having heard the testimony of the witnesses and received the exhibits offered into evidence, and having reviewed the files and records of the Court, enters its Findings of Fact Specially and its Conclusions of Law thereon in accordance with the provisions of Rule 52 of the Federal Rules of Civil Procedure as follows:

FINDINGS OF FACT

This action was filed in the court on March 21, 1973, by the plaintiffs, Wyoming Outdoor Coordinating Council, David James Addy and D'Orr R. Merritt. A motion for temporary restraining order was filed on the same date, and on March 22, 1973, a Temporary Restraining Order was issued, setting the case for hearing on April 2, 1973. At the time the other pleadings were filed a Motion for Preliminary Injunction was filed. On April 2, 1973, a stipulation to continue the time for hearing on preliminary injunction and consenting to the extension of temporary restraining order was filed by the parties, pursuant to which the hearing on the motion for preliminary injunction was continued until April 20, 1973. On April 16, 1973, an Amended Complaint for Declaratory Injunctive Relief and Mandamus was filed, by which the Wyoming Wildlife Federation and the Wyoming Division of the Izaak Walton League of America were added as parties. Due to an extremely severe storm occurring on April 19, 1973, the hearing in the case was continued until April 24, 1973, and on that date the Court entered its order consolidating the hearing on the Motion for Preliminary Injunction with the trial on the merits, and heard the evidence submitted by the parties on April 24, 25 and 26, 1973.

The plaintiffs brought the action seeking injunctive relief on the ground that the United States Forest Service of the United States Department of Agriculture had not complied with the National Environmental Policy Act in connection with two timber sales on the Teton National Forest within the District of Wyoming. Title 42 U.S.C. Section 4331 et seq. The failure to comply with the statute relied upon by the plaintiffs was the fact that an environmental impact statement was not filed and circulated by the Forest Service in connection with these timber sales. The concern of the plaintiffs is that the harvesting of the timber, and, more particularly, the construction of an access road to the timber sales sites with the accompanying additional access of larger numbers of people will have a deleterious effect upon an elk herd and some fisheries, and this is the significant impact upon the quality of the human environment which the plaintiffs seek to enjoin.

The Department of Agriculture and the United States Forest Service take the position that an environmental impact statement is necessary only if the action complained of is, first, a major federal action and is, second, one which has a significant impact upon the quality of the human environment. The Federal defendants contend that since this action was neither a major federal action nor one having a significant impact on the quality of the human environment it was appropriate to arrive, as the forest officials did, at a conclusion not to file an environmental impact statement, and that this decision if not arbitrary or capricious is in accordance with law and the plaintiffs are entitled to no relief.

The defendant Champion International Corporation, as the successful purchaser of the timber sold, supports the position of the federal defendants but in addition contends that none of the plaintiffs have demonstrated any irreparable injury. It further relies upon its own potential damage, inter alia, and the public interest contends that in any balance of the equities the injunctive relief shown should not be afforded to the plaintiffs under the usual principles applied in a court of equity.

1. The plaintiff Wyoming Outdoor Coordinating Council is an association made up of about 3,000 members, belonging to some 12 different organizations, the largest of which is the Wyoming Wildlife Federation, made up of about 1,500 members. Plaintiff David James Addy is a commercial outfitter sponsoring big game hunts (primarily elk) in the Moccasin Basin and surrounding areas of the Teton National Forest, authorized to do so by a permit from the United States Forest Service. Plaintiff D'Orr R. Merritt is a commercial outfitter sponsoring big game hunts (primarily elk) on other nearby National Forest Land, authorized to do so by a permit from the United States Forest Service. The defendants, excepting Champion International Corporation, are all employees of the United States of America, administering authorized federal programs on the Teton or Shoshone National Forests in Wyoming.

2. On June 30, 1971, the Forest Service of the United States Department of Agriculture entered into a timber sale contract with Champion International Corporation, Contract Number XX-XXXXX-X, in the Moccasin Basin area, in Region IV, Teton National Forest, Gros Ventre Ranger District, for the sale of an estimated 7,330 M.B.F. of timber.

3. On June 30, 1972, the Forest Service of the United States Department of Agriculture entered into a timber sale contract with Champion International Corporation, Contract Number XX-XXXXX-X, in the Calf Creek-Papoose Creek area in Region IV, Teton National Forest, Gros Ventre Ranger District, for the sale of an estimated 8,410 M.B.F. of timber.

4. The timber in these sales consists of mature and overmature lodgepole and similar pine species, to be cut from 46 clearcuts involving a total of about 770 acres in a gross sale area of about 7,700 acres, and the sales will produce payments for stumpage to the United States totaling approximately $580,000.00.

5. The Calf Creek-Papoose Creek sale called for separated 22 clear-cutting units totaling 338 acres, and the Moccasin Basin sale called for a total of 24 separated clear-cutting units totaling 332 acres. Pursuant to the Multiple-Use Sustained-Yield Act, Title 16 U.S.C. Sections 528 et seq., a Forest Timber Management Plan was adopted for the Teton National Forest and approved in 1962.

6. The land area included in the timber sales does not contain a pristine forest. While classified by the Forest Service as a "roadless area", it is now, and has been for many years, traversed by "jeep roads". This area is also used by ranchers for the grazing of livestock, and for the hunting of elk by licensed outfitters, and others. The trees that are to be harvested are mature or overmature lodgepole and similar pine species.

7. The timber is located in forest land traversed by several jeep roads, which are used by the public for hunting and recreational purposes, and consequently the area does not constitute a large unroaded area in the sense the term is used in Section 1941.22 of the Forest Service Manual, even though it was included in the roadless area study conducted pursuant to Section 2321.31b of the Forest Service Manual. The logging access to the area is to be provided by the defendant Champion International Corporation, consisting of 2.81 miles of road running through the Shoshone National Forest from Wyoming Highway No. 287 to the Moccasin Basin sale area.

8. The area included in these sales is uninhabited except for various species of wildlife, four outfitter camps, and a number of elk.

9. Before each of the subject timber sales was made it was studied in the manner prescribed by the Forest Service Multiple Use planning procedure established pursuant to the Organic Act of 1897, 16 U.S.C. Sec. 475-476, and the Multiple-Use Sustained Yield Act of 1960, 16 U.S.C. Sec. 528 et seq., where the impact of the sale on the elk, as well as the other natural resources in the area, was considered, using an interdisciplinary method. Further, and as a part of the Forest Service resource short and long-term uses, the agency gave due consideration to the following: hunting, domestic livestock grazing, tourism, eye sores and erosion, soil stability, air quality, forest regeneration, fish habitat, fire hazards and control, water tables, climate, road construction and safety factors, vegetation, insects and disease, watershed conditions, outdoor recreation, range management, geology, and elk calving.

10. The Teton National Forest Multiple Use Plan was reviewed and accepted by representatives of the Wyoming Game and Fish Department and the Wyoming Outdoor Coordinating Council prior to its adoption in 1969.

11. In accordance with the plan adopted in 1962, the Moccasin Basin Timber Sale was proposed and a Stage 1 Multiple-Use Survey Report for the sale was prepared by the District Ranger on January 26, 1966.

12. Thereafter, the Beauty Park portion of the Moccasin Basin Timber Sale was combined with the Moccasin Basin Proposal and a Stage 1 Multiple-Use Survey Report was written on the combined sale on January 31, 1968.

13. On February 9, 1968, a long-range sale program for the Gros Ventre Ranger District of the Teton National Forest was submitted to the Supervisor's Office. This report included both the Moccasin...