ELR Citation: ELR 20161
No(s). A-16-70 (D. Alaska Mar 25, 1971)

Suit to enjoin the sale of timber and patent of land in the Tongass National Forest dismissed. Plaintiffs, national and local conservation organizations, having standing to represent the interests of their members who will suffer direct and obvious injury to their aesthetic, conservational and recreational values because possibility of inconsistent verdicts was foreclosed by filing of a class action. The decisions of the Secretary of Agriculture made pursuant to his authority to administer the public domain, though discretionary, are subject to judicial review under the Administrative Procedure Act (APA), since there is law to apply. The APA does not here require trial de novo. However, the scope of review is not limited to the ex parte record compiled by the Secretary, but encompasses all evidence that was available. Plaintiffs' claim is barred, because established administrative procedures that could have obviated the need for review, or could have provided a more complete record and vastly simplified this proceeding, have been ignored. The sale of timber to U.S. Plywood-Champion Papers Co. in 1968 at the same price bid by St. Regis Paper Co. in 1965 was not an abuse of discretion, and the Secretary was authorized to condition the sale with the requirement that a mill be constructed and that primary manufacturing operations occur within Alaska. The Secretary's patent of national forest land for use in this processing is within the scope of his authority. Although evidence reveals the overwhelming commitment of the Tongass National Forest to timber harvest objectives in preference to other multiple use values, Congress has given no indication as to the weight to be assigned each value and it must be assumed that the decision as to the proper mix of uses within any particular area is left to the sound discretion and expertise of the Forest Service. Since there were no "primitive" areas in Alaska on September 3, 1964, and it does not appear that the sale includes any land within a national park, wildlife refuge or game range, the Wilderness Act is not applicable. The issuance of a use permit or patent to the Berners Bay-Echo Cove mill site was a "major federal action" with the meaning of the National Environmental Policy Act (NEPA). The Forest Service was justified in relying on the environmental impact investigation conducted by U.S. Plywood in preparing its impact statement, and under the circumstances NEPA was complied with to the "fullest extent possible." Plaintiffs had contemporaneous knowledge of all events leading to the timber sale and the issuance of entitlements to use the Berners Bay-Echo Cove mill site. They were also aware of the substantial expenditures that U.S. Plywood was making in performance of the timber sale contract. In the absence of any justification for the delay in instituting this action, this suit is barred by the doctrine of laches.

Counsel for Plaintiffs
Warren W. Matthews Jr.
Matthews & Dunn
Suite 201, Loussac-Sogh Bldg.
429 D Street
Anchorage, AK 99501
(907) 272-2491

Counsel for Federal Defendants
Frederick L. Miller Jr.
Department of Justice
Land and Natural Resources Division
Washington, DC 20530
(202) 737-8200 ext. 2771

Counsel for Intervenor-Defendant U.S. Plywood-Champion Papers, Inc.
L. Clair Nelson
Vice-President-Legal Affairs
U.S. Plywood-Champion Papers, Inc.
777 Third Avenue
New York, NY 10017
(212) 935-3627

C. Girard Davidson
Davidson, Engstrom & Henri
National Bank of Alaska Bldg.
Juneau, AK 99801
(907) 586-1445

James P. Rogers
Manley B. Strayer
Davies, Biggs, Strayer, Stoel and Boley
1410 Yeon Bldg.
Portland, OR 97204
(503) 228-8548

Counsel for the State of Alaska
Charles K. Cranston Assistant Attorney General
360 K Street, Suite 105
Anchorage, AK 99501
(907) 272-1552