ELR Citation: ELR 20489
No(s). s. 404-70 et al (10th Cir. Oct 1, 1971)

District Court injunction of a timber sale in the East Meadow Creek Area of the White River National Forest is affirmed because the discretionary authority of the Secretary of Agriculture and Forest Service to determine which areas of the National Forests should be studied for possible preservation as wilderness is constrained by the Wilderness Act of 1964, and therefore actions that are inconsistent with that limited authority may be set aside by reviewing courts. Because the administrative agency's discretionary authority is limited, this suit is not barred by the doctrine of sovereign immunity. The legislative history of the Wilderness Act and the regulations of the Forest Service implementing that statute both support the conclusion that because the power of the president and Congress to add contiguous areas of possible wilderness value to designated wilderness areas, will be ineffectual if those wilderness values are not administratively protected by the Forest Service until a final determination is made, any interim administrative action inconsistent with wilderness preservation on such continguous areas is invalid. Plaintiffs' apparent failure to exhaust their administrative remedies is not dispositive of this suit because there is no statutory mandate requiring such exhaustion, resolution of the issues in this case do not require administrative expertise, the argument was first raised on appeal—too late to conserve judicial time and the crucial administrative decision was informally considered at all appropriate administrative levels.

Counsel for Plaintiffs:
H. Anthony Ruckel
330 Majestic Building
Denver, CO 80202
(303) 892-1144

Richard D. Lamm
Tom W. Lamm
555 Petroleum Club Building
Denver, CO 80202
(303) 534-6218

William A. Hillhouse II
1200 American National Bank Building
Denver, CO 80202

Donald M. Carmichael
Associate Professor of Law
University of Colorado
Boulder, CO 80302
(303) 443-1221 ext. 8082

Counsel for Federal Defendants:
James L. Treece United States Attorney
James L. Richards Assistant United States Attorney
323 United States Courthouse
Denver, CO 80202
(303) 781-7183

Nelson H. Grubbe
S. Billingsley Hill
Department of Justice
Land & Natural Resource Division
Washington, DC 20530
(202) 737-8200

Counsel for Defendant Kaibab Industries
Thomas J. Trimble
Jennings, Strouss, Salmon & Trask
111 West Monroe
Phoenix, AZ 85003
(602) 258-7011

Donald C. McKinlay
Holme, Roberts & Owen
1700 Broadway
Denver, CO 80202
(303) 377-8373

Counsel for Intervenor Western Wood Products Association
James P. Rogers
Davies, Biggs, Stayer, Stoel & B
1410 Yeon Building
Portland, OR 97204
(503) 228-8545

John H. Trippit
1704 Security Life Building
1616 Glenarm Place
Denver, CO 80202

Before LEWIS, Chief Judge, Pickett and ADAMS^*, Circuit Judges.