ZIESKE v. BUTZ No. J75-2 Civil.
412 F.Supp. 1403 (1976)
Herbert L. ZIESKE et al., Plaintiffs, v. E. BUTZ, Individually and as Secy. of Ag. of the U. S., et al., Defendants, v. ROBERTSON & SONS, INC., Defendant-Intervenor.
United States District Court, D. Alaska.
May 5, 1976.
Richard D. Folta, Haines, Alaska, William Royce, Jernberg & Taylor, Ketchikan, Alaska, G. Keith Grim, Robert R. Davis, Jr., Lane, Powell, Moss & Miller, Seattle, Wash., for plaintiffs.
Gordon E. Evans, Engstrom & Evans, Juneau, Alaska, for intervenor Bohemia, Inc.
G. Kent Edwards, U. S. Atty., Anchorage, Alaska, L. Mark Wine, Dept. of Justice, Washington, D. C., for defendants.
Peter R. Ellis, Ellis & Sund, Inc., Ketchikan, Alaska, for intervenor.
James F. Clark, J. P. Tangen, Robertson, Monagle, Eastaugh & Bradley, Juneau, Alaska, Leonard B. Netzorg, Portland, Or., for amici curiae, Schnabel Lumber Co., et al.
MEMORANDUM AND ORDER
VON DER HEYDT, Chief Judge.
This cause comes before the court upon defendant Ketchikan Pulp Company's motion to amend the judgment of this court entered on February 23, 1976, in accordance with the court's order of December 23, 1975. See, Zieske v. Butz,
The defendants and amicus curiae, representing the interests of approximately one hundred and fifty lumber companies, have advanced four principal arguments,
Turning to the first issue, the correctness of the Fourth Circuit's decision in West Virginia Division of the Izaak Walton League, Inc. v. Butz, supra, it is sufficient to say that a careful review of both the statutory language and legislative history of the Organic Act reinforces this court's conviction that the Fourth Circuit's interpretation of that Act coincides with what Congress said, and intended to say, in 1897.
The second contention of the defendants, one not raised heretofore, is that the prefatory language, "As far as practicable," 16 U.S.C. § 475, gives the Secretary of Agriculture the discretion to sell and to authorize the cutting of timber which is neither dead, mature nor large where it is "impracticable" to follow the specific Congressional mandate of section 476.
The defendants next argue that the Tongass National Forest should be treated differently than every other national forest because of the Tongass Resolution of 1947, 61 Stat. 920-21. While that resolution may have had the effect of validating certain contracts formed prior to its passage, obviously it did not confirm the contract that is the subject of this litigation. Further, the language of the resolution neither directly nor indirectly addresses the practice of clearcutting. Rather the statutory language makes specific reference to the provisions of the Organic Act of 1897.
While it is true that the legislative history of the Tongass Resolution demonstrates that some members of Congress were aware that clearcutting would be the prevalent method of timber harvest in the Tongass,
The argument advanced by amicus curiae is that the Materials Act of 1947, as amended,
The short answer to this argument is that the Organic Act, properly viewed, is both a grant and a limitation on the power of the Secretary. It is a grant to sell timber located within the confines of public lands which have been set aside for National Forest purposes. However, the Act is also a limitation on the type of timber that may be sold from such lands. At least that much is clear from the legislative history of the Act. When the Act is viewed in such a manner, it would be senseless to hold that the general provisions of the Materials Act, as amended, were intended to repeal by implication the specific statutory mandate of the Organic Act.
Further, by its own language it would appear that the Materials Act, as amended, does not apply to timber sales executed by the Secretary of Agriculture on National Forest lands. That Act specifically provides that it is inapplicable where the disposal of such vegetative material, here timber,
Accordingly, IT IS ORDERED:
THAT Ketchikan Pulp Company's motion to amend judgment is denied.
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