Wyoming Outdoor Coordinating Council v. Butz, No. 73-1477.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: SETH, HOLLOWAY and DOYLE, Circuit
• Citation: 484 F.2d 1244
• Parties: WYOMING OUTDOOR COORDINATING COUNCIL et al., Plaintiffs-Appellants, v. Earl L. BUTZ, in his official capacity as Secretary of the United States Department of Agriculture, et al., Defendants-Appellees.
• Decision Date: 21 September 1973
• Docket Number: No. 73-1477.

484 F.2d 1244 (1973)

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

No. 73-1477.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted August 14, 1973.

Decided September 21, 1973.

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John D. Leshy, Palo Alto, Cal. (Toby Sherwood, Palo Alto, Cal., John R. Hursh, Riverton, Wyo., and Jack Speight, Cheyenne, Wyo., on the brief), for plaintiffs-appellants

Robert L. Klarquist, Atty., Dept. of Justice, Washington, D. C. (Wallace H. Johnson, Asst. Atty. Gen., Richard V. Thomas, U. S. Atty., Cheyenne, Wyo., and Carl Strass, Atty., Dept. of Justice, Washington, D. C., on the brief), for defendants-appellees.

Richard I. Leedy, Riverton, Wyo. (James L. Hettinger, Hettinger & Leedy, Riverton, Wyo., on the brief), for defendant-appellee, Champion International Corp.

Before SETH, HOLLOWAY and DOYLE, Circuit Judges.

HOLLOWAY, Circuit Judge.

Appellants seek declaratory, injunctive and mandamus relief against road building and logging in connection with two contracts for the sale of timber from areas in the Teton National Forest in Wyoming which the appellees would carry out without preparation and distribution of an environmental impact statement (EIS) as provided by Section 102(2) (C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.A. § 4332(2) (C).¹ Appellants' position is that the statute bars performance of the contracts until the requirements of NEPA have been met. The District Court upheld the decision of the federal officials that the sales did not involve a major federal action significantly affecting the quality of the human environment and that the impact statement requirement did not apply. 359 F.Supp. 1178.

We are unable to agree with the District Court. In view of facts that are undisputed as to various actions to be taken under the contracts affecting large undeveloped areas in the Teton Forest, and the strict provisions and policy underlying the statute, we are convinced that the impact statement procedures were required to be followed.

The proceedings and decision in the District Court

At the commencement of the suit the District Court temporarily restrained timber cutting and road building in the sale areas. The Court consolidated the hearing on the preliminary injunction application with the trial on the merits. After trial without a jury the Court entered findings and conclusions favorable to the appellees, dissolved the restraining

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order and dismissed the cause. After a notice of appeal was filed, this Court granted relief enjoining the carrying out of the contracts pending disposition of the appeal

The District Court stated its findings and conclusions in detail. They thoroughly outlined the circumstances surrounding the actions contemplated under the timber contracts and the nature of the forest area involved. We need only restate the principal facts from the findings which essentially were as follows.

The timber sale contracts involved were made by the Forest Service with the appellee Champion International Corporation (Champion), on June 30, 1971, and June 30, 1972, involving respectively 7.33 and 8.41 million board feet of timber. The timber covered consists of mature and overmature lodgepole and similar pine species. Both sales are from areas in the Teton National Forest of Wyoming. The timber would be cut from 46 clearcuts.² The clearcuts were found to involve about 770 acres in a gross sale area of about 7,700 acres.³

The Court found that the land area included in the sales does not contain a pristine forest. Although classified by the Forest Service as a roadless area, it has been traversed for many years by jeep roads. It is also used by ranchers for the grazing of livestock and for the hunting of elk by licensed outfitters and others. The area included in the sales was found to be uninhabited except for various species of wildlife, four outfitter camps and a number of elk.

It was found that the Service made studies in the manner prescribed by the Forest Service Multiple-Use planning procedure, established pursuant to the Multiple-Use Sustained Yield Act of 1960, 16 U.S.C.A. § 528 et seq. These studies included consideration of hunting, livestock grazing, tourism, eyesores, erosion, soil stability, air quality, forest regeneration, fish habitat and other stated factors. Plans including these sales ultimately developed following the studies.

Both of the sales involved were publicly advertised for 30 days before acceptance of bids. An additional Multiple-Use Survey Report was prepared in December, 1970 and January, 1971, with respect to the first sale contract which was ultimately approved in May, 1971. Comments had been received from officials from the Wyoming Game and Fish Commission. With respect to the second sale contract, a Multiple-Use Survey Report Stage 1 was prepared and approved during February and March, 1970. A change was made from an originally planned road of some six miles to service the sales area to a second road of 2.81 miles in length outside of the "roadless area."

In January, 1973, Environmental Impact Reviews were prepared with respect to the sales. The Forest Service concluded that in view of the lack of significant effect on the human environment and consideration given to wilderness management, environmental statements were not needed for the sales in question.

The District Court also found that Champion was dependent on Forest Service sales to operate its mills at Riverton and Dubois, Wyoming. It was found that by October, 1973, Champion will have processed all logs on hand and that without these two sales, the company's two mills at those towns may

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have to be closed. Findings as to the substantial economic importance of Champion and the timber industry to Riverton and Dubois and to Fremont County were also made

We must note that findings were made as to some fact questions that were in the area of controversy. There was conflicting testimony as to the claim of adverse effect of logging on elk herds. The Court found that harvest of the timber would have no adverse effect on the livelihood of the elk herds. It was found that additional hunting pressure resulting from roads could be adequately counteracted by closing of roads and regulation of hunting licenses so that no irreparable damage would occur to the elk. The "roadless" character of the area was also a matter of dispute. As stated, the Court found that the area did not contain a pristine forest because it was traversed by jeep roads and used for livestock grazing and for hunting. These findings as to subsidiary dispured facts are supported by substantial evidence and must be accepted as not clearly erroneous. Rule 52(a) F.R.Civ.P.

The District Court found that the administrative record introduced was adequate and supported the decision not to file an environmental impact statement and that the decision was not unreasonable in light of the facts and circumstances. The Court concluded, applying the standard of review which it determined to be proper, that the decision that no statement was required was based on consideration of relevant factors, did not result in any clear error of judgment, was not arbitrary or capricious or an abuse of discretion and was in accordance with law.

Judicial review under standards required...