A 37qu 0F mmnon RELATED ' TO MANAGEMENT or FOREST SERVICE ADMIN tSTERED. LANDS AND :75- EFFECT on PO'UCY 9501310143 PART ONE: m1: GANDT 31C HARD-IN ms: Thesis for the Degree of M. 3‘ MICHIGAN STATE UNWERSiTY MALCOLM RUPERT CUTLER 1971 . 7.; n .‘ alo" . r09 .‘ . 4w. .. -. _ cc.‘_,. .tt-F‘.-." IIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 3 112193 00628 9&1) a g _ ‘ " ' ' .91 - ‘ Migll‘ga: )tfovv LIBRARY Ushers}! (,4 A M‘flgi ABSTRACT A STUDY OF LITIGATION RELATED TO MANAGEMENT OF IFOREST SERVICE ADMINISTERED LANDS AND ITS EFFECT ON POLICY DECISIONS PART ONE: THE GANDT V. HARDIN CASE BY Malcolm Rupert Cutler Because standing to sue recently has become less of a problem for conservation organizations, many legal actions have been filed in recent months by such groups to try to resolve environmental disputes in court. A number of these actions have involved the Forest Service, U.S.D.A. Should the trend toward citizen-group use of the courts to contest Forest Service administrative decisions gain mo- mentum, the agency could find some of its programs delayed for substantial periods of time or terminated altogether. Administrators of the National Forest System would like to know how best to cope with those expressions of dissatisfaction with their decisions which emanate from their various clientele groups in order to avoid expensive and time-consuming administrative and judicial reviews. How Forest Service policies-and procedures, particularly with respect to the involvement of the public in agency Malcolm Rupert Cutler decisionmaking, might be amended to lessen the apparent pressure on conservation groups to utilize the courts as their conflict resolver of last resort is the question this two part study seeks to answer. This is a single case study, a trial run in prepa- ration for the multi-case reconstruction and analysis which will constitute the Ph.D. thesis-final report. Described here is a controversy between the Forest Service and an ad hoc citizen conservation group, the Save Our Sylvania Action Committee (SOSAC) of Green Bay, Wisconsin, over the management of the newly acquired Sylvania Recrea- tion Area in Michigan's Upper Peninsula. The case, which reached the federal district court hearing stage in Decem- ber 1969, is known as Gandt v. Hardin. In this instance, the plaintiffs' complaint--abuse of administrative discre- tion through failure to weigh the impact of a proposed development scheme on this "wilderness" area's natural values prior to proceeding with road and other construc- tion--was dismissed on the bases of lack of evidence and untimely delay in the filing of the complaint (laches). This description of the Gandt v. Hardin controversy is based on study of relevant literature, the reconstructed chronology and contents of all available transaction evi— dence (correspondence, house organ editorial statements, internal memoranda, minutes and proceedings of meetings, and similar materials), interviews with key participants Malcolm Rupert Cutler in the case, and a first-hand, on-the-ground inspection of the Sylvania area and the developments there to which SOSAC objected. The resources at stake in the area are summarized, and the land ownership history is brought up to date. A detailed chronology of events related to the issue is provided, from the time the Forest Service entered the picture through the court hearing. Communications shortcomings as well as differences in points of view be- tween the agency and the citizen group are pinpointed. The legal implications of the EEEQE decision are tenta- tively indicated. A STUDY OF LITIGATION RELATED TO MANAGEMENT OF FOREST SERVICE ADMINISTERED LANDS AND ITS EFFECT ON POLICY DECISIONS PART ONE: THE GANDT V. HARDIN CASE BY Malcolm Rupert Cutler A THESIS Submitted to Michigan State University in partial fulfillment of the requirements for the degree of MASTER OF SCIENCE Department of Resource Development 1971 ACKNOWLEDGMENTS Without the help of many individuals and organiza- tions this thesis could not have been written. It would not have been started if my wife, Gladys, had not agreed to return to work and to accept for a period of years the lower standard of living which accompanies graduate study. It could not have been completed without the aid of Dr. Howard Tanner, MSU Director of Natural Resources, who cleared the way for University financial assistance and made an office in the Natural Resources Building available to me; Mr. Henry DeBruin, Director of Information and Education, United States Forest Service, who sought and won Forest Service support for the project,1 enabling me to Spend the summer of 1970 gathering data by traveling to the home communities of key individuals for interviews; and the National Wildlife Federation, which provided addi- tional financial assistance through its graduate fellowship program. Dr. Leighton L. Leighty, Professor of Natural Resources Law, provided the guiding spirit behind this research as my thesis chairman. Helpful, too, were Dr. 1Contract No. 12-11-009-22423 ii Milton H. Steinmueller, my academic advisor; Dr. Daniel E. Chappelle, who assisted me with the study plan; and Pro- fessor Louis F. Twardzik, Chairman of the Department of Park and Recreation Resources, whose class in Park and Recreation Policy during the Fall of 1970 quarter dealt specifically with the Sylvania area as a case study, pro- viding opportunities to visit in East Lansing with class guest speakers who were participants in the Gandt v. Hardin litigation. Because this study is essentially a detailed de— scription of the anatomy of a single controversy, the cooperation of the leadership on both sides of the Sylvania court action was essential. Thankfully, it was obtained without difficulty. Dr. Jerry Gandt, Dr. Robert Ditton, attorney Fred Reiter and several other members of the plaintiffs' "team" spared no time or effort to provide me with all I asked for in the way of copies of correspondence and other transaction evidence as well as verbal descrip- tions of what happened and why. Similarly, personnel of the Forest Service--in Washington, D.C., the Eastern Regional Office in Milwaukee, and at its Ironwood and Watersmeet, Michigan national forest and ranger district headquarters--were unfailingly helpful in documenting the defendants' side of the story and in obtaining key materials including a copy of the Proceedings of the court hearing. Mr. Robert Rue and Mr. iii Jack Curtis of the U.S. Department of Agriculture's Office of General Counsel contributed important ideas from their vantage point as federal attorneys. District Ranger Marsh Lefler's guided tour of the controversial developments within the Sylvania Recreation Area, and Ottawa National Forest Recreation Officer Richard Guth's verbal recollections of the events that led up to the Sylvania lawsuit were indispensable. Mr. Ralph Kizer, Supervisor of the Ottawa National Forest,-was my key; source of Forest Service data and a constructive critic of an early draft of the report. Thanks also go to Miss Virginia Prentice of Ann Arbor, Michigan, past chairman of the Mackinac Chapter of the Sierra Club, for the documentation of the Sierra Club's role herein described; Mrs. Margaret Huffman, office manager of the Michigan United Conservation Clubs head- quarters in Lansing, for access to MUCC's file on this issue; Miss Muriel Ferris, legislative assistant to U.S. Senator Philip A. Hart, for copies of bills, press re- leases and other needed materials; and fellow MSU graduate students Martin Hanratty, John Carroll, and Marion May for providing me with materials on Sylvania obtained during the development of their class reports on this subject. iv TABLE OF CONTENTS LIST OF APPENDICES . . . . . . . . . . . . . . . . Chapter I. II. III. IV. V. INTRODUCTION AND BACKGROUND . . . . . . . . Introduction . . . . . . . . The Problem . . . . . . . . . Objectives of the Study . . . Review of Relevant Literature PROJECT DES IGN O O O O O O O O O O O O O 0 Research Methods . . . . . . . Conceptual Foundation . . . . . Interviews in the Field . . . . Research Approach Summarized . SYLVANIA: THE RESOURCES AT STAKE . . . . . Historic Background . . . . . . . . . . . Geological and Biological Characteristics SYLVANIA: LAND-OWNERSHIP HISTORY . . . . . The Sylvania Club is Organized . Forest Service Negotiations . . . Study Plan Conclusions . . . . . Study Plan Recommendations . . . Congressional Hearings . . . . . Promises Made to Gogebic County . Congress Appropriates Acquisition Fund Dedication Day . . . . . . . . . . . Forest Service Proposal Unopposed by Conservationists . . . . . . . . . . . . SYLVANIA: EVOLUTION OF THE MANAGEMENT PLAN Objective Becomes Maintenance of "Unique Quality" . . . . . . . . . . . . Page viii \OO’KNH |-' Chapter Page 1968 Plan Protects More of Sylvania's “ Interior " O O O O O O O O O 0 O O O O 8 3 Reasons for the Shift in Emphasis . . . . . 89 The "Public Involvement" Record . . . . . . 91 Comments of-the Secretary's Advisory Committee . . . . . . . . . . . . . . . . . 95 The Ad Hoc Advisory Committee Meeting . . . 100 Regional Office Reactions . . . . . . . . . 106 VI. SYLVANIA: THE MANAGEMENT PLAN COMES UNDER FIRE . O O O O O O O I O C O O O O O O C O O 109 Letters Urge Modification of Management Plan . . . . . . . . . . . . . . . . . . . 110 Resolutions Call for Sylvania Development Moratorium . . . . . . . . . . . . . . . . 117 VII. SYLVANIA: DR. GANDT FORCES THE ISSUE . . . . 125 "Your Views are Appreciated" . . . . . . . 126 Senator Nelson Questions Chief Cliff . . . 128 Senator Hart Supports Forest Service Plan . . . . . . . . . . . . . . . . . . . 135 Development Moratorium Requested . . . . . 138 Public Hearings Requested . . . . . . . . 141 Hiring of C. H. Stoddard as Consultant Suggested . . . . . . . . . . . . . . 142 Dr. Gandt Tours Sylvania with Dr. Selke . . 143 VIII. SYLVANIA: SOSAC IS ORGANIZED . . . . . . . . 154 President Nixon's Help Sought . . . . . . . 154 SOSAC Charges "Negligent Enforcement" . . . 157 Marsh Lake Timber Sale Advertised . . . . . 160 Position Papers Issued by Both Sides . . . 164 Michigan Conservation Groups Disagree with SOSAC . . . . . . . . . . . 173 SOSAC' s "Walk to Whitefish" . . . . . . . . 184 A Failure to Communicate . . . . . . . . . 189 Decision to Sue Made as Last Resort . . . . 192 IX. SYLVANIA: SOSAC'S COMPLAINT DISMISSED BY FEDEML JUDGE O O O C O O O I O O O C O O 1 9 5 The Plaintiffs' Allegations . . . . . . . . 200 The Defendants' Answer . . . . . . . . . 204 The November 24 "Order to Show Cause" . . . 205 Preparation for the Hearing . . . . . . . . 206 The December 9-10 Hearing in Marquette . . 212 The Opinion of the Court . . . . . . . . . 234 vi Chapter Page x. SYLVANIA: EPILOGUE . . . . . . . . . . . 237 District Court Decision Widely Publicized . . . . . . . . . . . . . . . . 237 "SOSAC" Becomes "Wilderness Watch" . . . . 240 Reactions of Other Groups . . . . . . . . . 250 How the Forest Service Views its Sylvania Plan . . . . . . . .9. . . . . . . 261 Gandt v. Hardin: The Legal Implications . . . . . . . . . . . . . . . 268 In Conclusion . . . . . . . . . . . . . . . 278 APPENDICES O O O O O O O O O O O 0 O O O O O O O O O 281 BIBLIOGRAPHY o o o o o o o o o o o o o o o o o o o o 3 2 0 vii LIST OF APPENDICES Appendix Page A. Financial Compensation to Local Governments for Federal Acquisition of Sylvania . . . . 281 B. Opinion of the Court . . . . . . . . . . . . 286 C. Contract between the Forest Service and Michigan State University . . . . . . . . . 312 D. Secretary's Memorandum No. 1695, Supplement 5 . . . . . . . . . . . . . . . 316 viii CHAPTER I INTRODUCTION AND BACKGROUND Introduction Until a relatively few months ago, the efforts of private citizen conservation organizations and individual conservationists to attain their environmental objectives were directed primarily toward working through the execu- tive and legislative branches of government, and not. through the judiciary. Organizations which tried to gain access to the courts to modify government agency projects were advised that they lacked "standing" as prOper parties to obtain redress. Trials on the merits of a conservation resource issue were rare. New ground was broken with the Consolidated Edison- Storm King decision in 1965, however. In thislandmark case1 a citizen group, the Scenic Hudson Preservation Conference, was granted standing to sue the Federal Power Commission, and the barriers to "standing" began to be lifted.i Since the decision, standing to sue has become 1354 F.2d 608 (2nd Cir. 1965), cert. denied sub nom. Consolidated Edison Co. v. Scenic Hudson Preservation Conference, 384 U.S. 941 (1966). less of a problem for conservation organizations and indi- viduals not directly damaged by agency activities. The tentative lifting of these access barriers to the courts has resulted in the filing of many legal actions in recent months by private individuals and conservation groups to try to resolve environmental disputes. A number of these actions have involved the Forest Service of the U.S. Department of Agriculture. Some of these cite the Secretary of Agriculture as one of the defendants; others list only specific Forest Service staff members as defendants.2 The Problem Should this trend toward citizen-group use of the courts to contest Forest Service administrative decisions gain momentum, the Forest Service could find some of its programs delayed for substantial periods of time or termi- nated altogether. Supervisory personnel of the Forest Service at national forest.headquarters, regional office, and Wash- ington office levels have been taken off regular duty assignments and "thrown into the breach" created by these lawsuits. Forest officers have spent thousands of man- days assisting federal attorneys from the Department of 2See p. 14 infra. Agriculture's Office of General Counsel and from the Justice DePartment in the preparation of the government's cases. They also have been distracted from their regular routines in order to handle the increased volume of cor- respondence from concerned citizens stemming from the publicity generated by the litigation. Today's citizen conservationist is often a college- trained professional person. Many are highly qualified scientists. The fact that these academically and politic- ally SOphisticated activists are banding toqether in con- servation organizations by the hundreds of thousands to make their voices heard means that the agency's "public relations" job is more difficult today than it was in the past. Hundreds of thousands of affluent, well-educated young adults, who believe they have had some political- action success in changing the government's attitudes on the war in Viet Nam, civil rights,.and the use of mari- juana, appear to be ready to adOpt the preservation of environmental quality as their personal crusade for the next decade or more. Channeling the energy of this vola- tile group, with Ralph Nader's team of youthful lawyers showing the way, may be even more difficult than coping with today's professional, middle-class, adult conserva- tionists, who at least to some extent share with the leaders of the Forest Service a common value system. In short, the mass-media communications efforts of the past--Smokey Bear, the Lassie television program and color booklets describing clear-cutting as resulting in beautiful "forest patterns"--will not be enough to keep citizens' groups from taking the agency to court if the agency's actions in the field are not in line with how an enlightened citizenry feels its national forests should be administered. The public today is demanding meaningful involvement, a sharing in the decisionmaking process. The Forest Service has not been singled out by conservationists for attack, despite its harried leaders' suspicions that such might be the case. It is only one of many bureaucracies being buffeted by the winds of change, represented by complaints being filed in court to overcome agency and corporate reluctance to move in new directions in tune with the times. Citizens' groups have found it possible to use the courts--as well as traditional admin- istrative remedies and just-as-traditional political pressure--in their constant search for countervailing power.. They can be counted upon now to attempt to win at least stop—gap solutions to their complaints in court, while seeking long-range solutions in the legislatures. A11 observers of the existing tense situation would agree that what i§_diverges from what ought to be. Just what ought to be--the normative state--is the question. All might agree that an end to the litigation would be desirable--but on whose terms? The Forest Service has emphasized the Multiple Use and Sustained Yield Act of 1960 as its basic policy guide- line, while some conservationists reject the multiple use definition in this act as too vague and therefore inoper- able, and would prefer an agency credo based on the phil- OSOphy behind more recent statutes such as the Wilderness Act of 1964, the National Wild and Scenic Rivers Act of 1968, and the National Environmental Policy Act of 1969. The conservationists' contention might well be that the Forest Service today is operating in an urban scene with a rural script, because most national forests now are within commuting distance of a "standard metropolitan area" and are used more as weekend recreation areas than they have been in the past. As the agency's clientele changes (most Americans are city-dwellers now), so must the agency change to reflect its clientele's changing needs. The situation I have chosen to investigate easily meets the minimal conditions for the existence of a prob- lem. Its "anatomy" is as follows: (1) The chief and staff of the Forest Service--the decisionmakers in this instance--have a problem, i.e., the litigation which has‘ their people in court and is delaying the implementation of administrative decisions. This evidence of public dis- satisfaction with the agency's decisions weakens its posture in the Federal Establishment; it becomes more susceptible to budget—cuts and reorganization schemes. (2) An outcome (objective or goal) is desired by these decisionmakers, namely the reduction to a minimum of such litigation in the future. This outcome could also be stated as "satisfied recreationists." Also, an early warning system to catch conflicts before they blow up into litigation might be sought. (3) These decisionmakers have at least two unequally efficient courses of action, e.g.,‘ the hiring by the government of more lawyers to expedite handling of lawsuits or the modification of the agency's procedures in order to provide for meaningful public in- volvement in its decisionmaking processes, thereby reducing the conservationist frustration which results in lawsuits. (4) A state of doubt, or uncertainty, might be said to exist as to which alternative course of action is best. (5) An environment, or context, of the problem exists, consisting of uncontrollable variables such as the actions of other decisionmakers, reactions or counter-reactions, previous commitments, and recreationists' preferences. Objectives of the Study Administrators of the National Forest System would like to know how best to cope with those expressions of dissatisfaction with their decisions which emanate from their various clientele groups in order to avoid expensive and time-consuming administrative and judicial reviews. They would prefer to "get on with the job at hand." The question is: Can they provide a relatively informal method of resolving conflicts at the field level that will keep initially small problems from becoming big contro- versies?, The agency's theoretical objective, albeit an im- possible one, is to keep all of its clientele groups happy all Of the time. These groups include several million recreationist-users of its national forest wilderness areas and less formally-designated back-country areas, whose organizations, typified by the Sierra Club, have been responsible for much of the recent litigation which has "tied the agency in knots." User-group dissatisfaction cannot simply be ignored and fought in the courts; the political ramifications of such an attitude, if nothing else, argue against following this route. The conservation groups who have sued the Forest Service share with the Service, it may be assumed, a dis- taste for this conflict-resolution route, if only because of its expense. The groups' lawyers pursue these suits enthusiastically, but no conservation organization has the resources to be able to afford very many lawsuits when each suit may cost it twenty or thirty thousand dollars for legal fees and related expenses.3 And so it would be to the advantage of all concerned--the Forest Service, the conservation organizations, and our overburdened courts-- if further litigation of the sort presently in the courts involving the Forest Service could be avoided or at least kept to a minimum number of cases in the future, as long as satisfactory resolution of conflicts could be obtained at a less formal level. This two-part investigation will analyze in detail the development, or evolution, of four Forest Service- conservation group conflicts which have been the subject of federal court hearings. The backgrounds of a number of other similar conflicts not quite as well developed also will be reviewed, but in less detail. The sequence of events will be reconstructed in each case, to identify common elements such as, for example, the absence of public hearings or other "due process" procedures. The information thus obtained, plus information on public involvement techniques used by other agencies, will be employed as the basis for the construction of a set of recommendations to the Forest Service regarding certain aspects of its relationships with its clientele groups. 3Michael McCloskey, Executive Director, Sierra Club, private interview, San Francisco, Calif., Aug. 14, 1970. The report will be published in two parts. The first segment (this thesis) constitutes a "trial run" investigation of a single case (the Gandt v. Hardin, or Sylvania, case) to test the technique. The second segment (the Ph.D. dissertation) will contain the full-blown, multi-case comparison, analysis, and recommendations. Review of Relevant Literature This investigation essentially is in a hitherto untouched field. It combines the techniques of legal research and historical documentation with the investi— gative and descriptive style of an embryonic field known as sociology of law. Because of the limited number of cases available for study which involve the Forest Service as defendant and a private conservation group as plaintiff, a census of the individuals (the responsible leadership) on both sides of each case has been chosen as the most practical way to obtain the needed data. At the core of this study is a description of one aSpect of a dynamic new field called environmental law. Whether environmental law is a bona fide division of the law profession at this juncture or consists only of the application of old legal procedures to a new kind of con- flict with a new class of plaintiff, it has become a very pOpular subject area. Several national conferences, sym- posia and workshops on the subject have been held since 10 the first such conference, sponsored by the Conservation Foundation of Washington, D.C., attracted environmental lawyers to Airlie House near Warrenton, Virginia in Sep- tember of 1969.4 Because environmental litigation is such a new field, and because no one else to this investigator's knowledge has worked on the question at hand (Why these lawsuits, and what can be done to avoid them?), the lit— erature review process was expected to be relatively un— productive. However, useful examples of work in allied fields such as sociology of law were found. Further, a few books and a number of law review and other journal articles have appeared on both the procedural aspects of environmental litigation and on the general question of public involvement in agency decisionmaking. Federal statutes, the regulations of federal agencies pertaining to public access to information and to the decisionmaking process, and sections of the Forest Service Manual also have an important bearing on this investigation. Examples of works available for use as style guides and sources of relevant insights into applicable aspects of the fields of public administration, sociology of law, and environmental law are cited in the bibliography. 4Conference proceedings: Malcolm Baldwin and James Page, editors, Law and the Environment (New York: Walker Press, 1970); see also, The COnservation Founda- tion, CF Letter (Sept. 30, 1969). 11 A detailed description of the relevant literature will constitute an important section of the second part of this report. Leading examples of literature in each field can be cited, however. For example, Law and the Behavior- ial Sciences by Professors Lawrence Friedman and Stewart Macauley includes excerpts from a number of studies in the area of sociology of law. Professor Joseph Sax's Defending the Environment provides an introduction to the field of environmental law. A Strategy for Citizen Action and the Sierra Club's "handbook for environmental activists," Ecotactics, are similarly valuable. The Bureau of National Affairs, Inc. (BNA) in Washington, D.C. is the source of both a casebook (Cases and Materials on Environmental Law by Professor Oscar Gray) and a law reporter (Environment Reporter) in this field. Law school journals may be the best source of current information on the procedural as- pects of environmental litigation. Recent articles on the subject have appeared, among other places, in the Columbia, Oregon, Rutgers, Utah, and Wayne law reviews, in Wyoming's Land and Water-Law Review, in the New Mexico law school's Natural Resources Journal, and in the Harvard Civil Rights and Civil Liberties Law Review as well as in the U.S. Department of Justice's Land and Natural Resources Division Journal. The house organs of the national conservation groups (particularly the Sierra Club's Bulletin and the 12 American Forestry Association's American Forests) provide continuing coverage of the environmental lawsuit situation from these groups' points of view. Congressional documents, such as the hearings. before the Subcommittee on Energy, Natural Resources, and the Environment of the Senate Committee on Commerce on S. 3575, the Environmental Protection Act of 1970, and relevant insertions by Members of Congress in the Congres- sional Record, are recommended reading as background for an appreciation of the changing context of public opinion and awareness, within which the field of environmental law is evolving and developing. Finally, books and journal articles on the subject of public administration (such as-Kaufman's The Forest Ranger: A Study in Administrative Behavior, Reich's Bureaucracy and the Forests, Woll's American Bureaucracy, and Mosher's Democracy and the Public Service) and official documents and statements emanating from the offices of the Secretary of Agriculture and the Chief of the Forest Service must be reviewed in order to tie together what is happening in the courts with what is happening in the Forest Service. CHAPTER II PROJECT DESIGN Research Methods Initially, it can be stipulated that the investi- gator has a strong personal interest in pursuing this: investigation, stemming from his close connection with parties on both sides of the lawsuits under study. As a graduate of a forestry-wildlife management undergraduate curriculum at the University of Michigan, as a former seasonal employee of the U.S. Forest Service, as a former state wildlife agency division chief, and as a former consultant to the Office of Environment and Urban Systems of the U.S. Department of Transportation, he is apprecia- tive of the problems faced by government resource adminis- trators in carrying out their statutory missions with efficiency and dispatch. As a former executive staff officer of both the National Wildlife Federation and The Wilderness Society, he knows the frustrations experienced by private citizen group leaders who seek to modify execu- tive-branch agency policies on behalf of the interests of their members. 13 14 Four lawsuits and their backgrounds are to be examined in detail during the course of this study. These actions are: 1. Dr. Jerry Gandt, et al. v. Clifford Hardin, et al., F. Supp. (W.D. Mich. 1969) (Civil Docket No. I334, Dec. 11, 1969) (Sylvania Recreation Area devel- Opment, Michigan) 2. Robert W. Parker, et al. v. The United States‘ of America, Clifford Hardin, et aI., 307 F. Supp. 685 (D. Colo. 1970) (No. C-1368, Feb. 27, 1970) (East Meadow Creek timber sale, Colorado) 3. Sierra Club v. Walter J. Hickel, et al., F. Supp. (N.D. Cal. 1969) (No. 51464, JuIy 23, 1969) (Mineral King ski development, California) 4. Izaak Walton League of America v. George W. St. Clair, et al., 313 F. Supp. 1312 (D. Minn. 1970) (Civil Docket No. 5-69-70) (Boundary Waters Canoe Area mining permit, Minnesota) Other, more recent cases and controversies, in- cluding examples in Alaska, Washington State, Oregon, Idaho and West Virginia involving the Forest Service, will be compared with these.pace-setting examples.l lThese cases-and controversies will be reviewed: Sierra Club, Sitka Conservation Society, and Carl Lane v. Clifford Hardin, et a1. (D. Alaska) (Civil Docket No. .A-l6-70) (Admiralty ISland timber sale); Alpine Lakes Protection Society, et al., v. Clifford Hardin, et a1. (W.D. Wash.) (No. 8885) (Middle Fork SnoqualmieRiver valley mine access road construction); Save French Pete Committee, et a1. (appeal to the chief of the Forest Service) (F.S. Docket No. 172, June 2, 1970) (management of French Pete Creek drainage, Oregon); White Cloud Mount- ains, Idaho (prOposed mining and road construction); West Virginia Highlands Conservancy v. The Island Creek Coal Company, et a1. (N.D. W. Va.) (Civil Action No. 70582—E) (pr0posed mining and road construction). 15 The purpose of the present study will be to ex- plore and document the following aspects of the above- mentioned cases: (1) What were the legal bases for the suits? (2) Do these bases conform to traditional legal approaches? (3) Are the current approaches likely to have increased legitimacy in the future? (4) What are the legal ramifications of these suits--the impact of law on society, and the impact of society on the law? (5) Specifically, what is the possible extent of the impact that may be expected on Forest Service policies and programs? (6) Do these suits and other forms of conflict have any common denominators--in terms of the kinds of groups involved, the actions of the Forest Service, and the legal bases employed? (7) Were these lawsuits and other actions conceived as "last resort" efforts by the citizen groups who ini-' tiated them? What other courses of action--avenues of communication and possible conciliation or compromise with the Forest Service--were open to these groups? Were these avenues of communication used before the lawsuits were - decided upon as a necessary course of action? Do adequate means of public involvement in Forest Service decision- making exist at the present time? 16 The research involved in the analysis of the cases listed above will involve a combination of the traditional legal research techniques and data-gathering by means of interviews with all primary participants. The cases under investigation will be described; the basic facts of each situation will be set forth, with precise chronologies; the resources at stake in each instance will be described briefly but precisely; and background data will be pro- vided. Included in the analysis will be a discussion of the elements of commonality and dissimilarity, legal remedies and strategies, attitudinal problems, and the limited number of opportunities for citizen involvement in agency decisionmaking. The literary cognitive style is used because this report is basically a description, comparison, and analysis of case studies. And because the phenomenon under investi- gation is so difficult to predict, a "verbal" research model is used, assisted by a nominal scale of measurement (a listing of the different cases being studied). Conceptual Foundations We begin with a double handicap, from the stand- point of a scientific investigation, because neither legal research nor historical documentation appear to be re- garded as bona fide applications of the scientific method (Tullock, The Organization of Inquiry, p. 59). But, if a 17 qualitative, verbal model meets the test, we should be able to demonstrate the truth or falsity of the statement: Increased public involvement in agency decisionmaking will result in "better" decisions (based on more information) —-"betterness" being related to societal goals. While one hypothesis tentatively considered--More public involvement will result in less litigation--has been discarded because it has been suggested by several observers that the oppo- site may well prove to be the case, reduction of litigation is a prime maxim in the law, and perhaps "better" decisions will result in less litigation. More to the point, perhaps, we should be able to show either that elements of commonality-exist between a wide range of cases of broad applicability, or that no element of commonality exists and each case is an aberra- tion unique unto itself. If we can identify those condi- tions which are common to all suits, which are likely to recur, and which will lead to lawsuits, we should be able to prOpose solutions--e.g., manual and policy changes—-to eliminate these causal conditions. (This is based on the assumption that the organization wants to provide goods and services that the general public wants, recognizing that basic conflicts between various clients of the agency exist.) What kinds of information are needed to prove or disprove these hypotheses? What kinds of decisions lead 18 to court suits?- Transaction evidence-~copies of letters, petitions, minutes of meetings, and other indicators of agency response to public inquiries-éhave been obtained and compared to arrive at the necessary conclusions. It can be speculated that, of the three branches of government (executive, legislation, and judicial), at least one branch must be responsive to the public that is frustrated by lack of response from the other branches. Today, perhaps because the executive branch is slow to respond to the public and the legislative branch has not been creative enough, relying almost entirely upon the executive branch to draft its legislation, the public is turning to the courts for relief, where it can deal as an "equal" with the agency and require it to justify its actions. Answers to pertinent questions will be sought through the personal interview process and through reading and analyzing the legal briefs, pleadings, court hearing transcripts, and decisions.in each case. Regarding the "law in action," are pe0ple complying with the "law"? What structures exist for the resolution of conflicts? What is the relevant formal law, the legal basis for the suit, the legitimacy of the approach? Did all the plain- tiffs experience "exhaustion and frustration" before finally deciding to go to court?. And where is the "crunch" --the impact of society on the law, the impact of the I 1 19 conservation groups on Forest Service policy (which is an informal part of the formal law)? Do we find ourselves today in a new social environment, where land-use decisions are no longer made unilaterally but where compromises are possible? Can an analogy be drawn between the emerging 2 and the acceptance of the public's "environmental rights" acceptance by society a generation ago of the rights of labor to workmen's compensation and collective bargaining? The urgency with which the Forest Service views this investigation is indicated in part by the fact that it has entered into a c00perative agreement with Michigan State University (Contract No. 12-11-009-22423; see Ap- pendix C) which has-provided funds to this investigator to proceed with the data-gathering phase of the study. Interviews in the Field During the summer months of 1970, the principal investigator traveled to the following field locations to interview participants in the cases, making detailed and precise notes during all interviews: Gandt v. Hardin: Milwaukee, Wisconsin: Regional Forester; Director, Information and Education Division, Washington, D.C.; USDA 2See Michael McCloskey, "A Bill of Environmental Rights," No Deposit-~No Return (Huey D. Johnson, ed.) (Reading, Mass.: Addison-Wesley Publishing Company, 1970), pp. 269-271. 20 Office of General Counsel Regional Attorney; Assistant Director, Recreation Division, Eastern Region; Assistant Director, Information and Education Division, Eastern Region. Ironwood and Watersmeet, Michigan: Forest Super- visor, Ottawa National Forest; Deputy Forest Supervisor; District Ranger, Watersmeet District. Green Bay, Wisconsin: Leaders of the Save Our Sylvania Action Committee including its scientific infor- mation director, its public information director, and its attorney. Parker v. U.S.: Denver, Colorado: Regional Forester and staff; Executive Director, Rocky Mountain Center on Environment; Director of Field Services, The Wilderness Society; attor- neys for the plaintiffs. Sierra Club v. Hickel: San Francisco, California: Director, Recreation Division, California Region, Forest Service; USDA Office of General Counsel Regional Attorney; Executive Director, Sierra Club; attorneys for the plaintiff. Porterville, California: Forest Supervisor, Sequoia National Forest; Mineral King Staff Specialist, Sequoia National Forest. 21 Izaak Walton League v. St. Clair: Milwaukee, Wisconsin: see Gandt listing above. Duluth, Minnesota: Recreation Staff Specialist, Superior National Forest. Ely, Minnesota: IWLA Wilderness Consultant Sigurd Olson. Minneapolis, Minnesota: plaintiff's attorney. In addition, copies of relevant correspondence and a complete set of the legal documents pertaining to both sides of each of these cases were obtained. Research Approach Summarized If we grant that science can include qualitative scales, and that "untestable" systems exist in social science, yet we should still be able to apply the scien— tific method to this study through: (1) impartial gathering of data (regarding the variables in the system--area, organization, opportunities for public involvement, etc.) by observation of a system; (2) making preliminary generalizations from the data by inductive reasoning; (3) testing the validity of the generalization and the deductive conclusions that logically flow from the theory (by making more observations); and (4) arriving at a verified hypothesis, or theory. 22 It is recognized that the interview partakes of two elements of subjectivity: the reports of the respond- ent or subject, and the reports made about the respondent by the interviewer or observer. Additionally, it is rec— ognized that probing--"a secondary, spontaneous, purpose- ful, supplementary comment or question used to add to both the completeness and accuracy of response and to further the COOperation and motivation of the respondent"—-creates a bias problem. Yet these are the only tools we have at hand to find out what is going on in this dynamic and important social area. We are reassured by Aristotle's observation, "An educated man demands no more exactness than is allowed by the subject-matter being dealt with," and by Kaplan's comment, "Careful observation and shrewd even if unformal- ized inference have by no means outlived their day."3 Hopefully, our verbal model will explain the behavior of some aspect of the system, as an expression of the re- searcher's view of the system based upon his experience, his knowledge of past work, and the data. As stipulated earlier, this thesis constitutes an investigation of a single case: the Gandt v. Hardin, or Sylvania Recreation Area, case. The chapters which follow 3Abraham Kaplan, The Conduct of Inquiry (San Francisco: Chandler Publishing Company, 1964), p. 283. 23 deal strictly with this case history: the resources at stake; the land-ownership history; the evolution of the Forest Service management plan and the extent of public involvement in same; and the evolution and "resolution" in court of the conflict between the Forest Service and the Save Our Sylvania Action Committee over how the Sylvania area should be developed. CHAPTER III SYLVANIA: THE RESOURCES AT STAKE Historic Background Sylvania is unique. There is no area like it nor will there be, giving in one compact area a vignette of virgin northwoods and primitive lakes. . . . It is reminiscent of the bygone days of the frontier when unbroken forests stretched from the Atlantic to the Great Plains and the Voyageurs traversed by canoe the endless lake chains of the north.1 The 21,000-acre Sylvania Recreation Area lies 355 miles north-northwest of Chicago, at the western end of Michigan's Upper Peninsula, with its southern boundary resting on the Michigan-Wisconsin border.. Its 33 square miles, all within Gogebic County, constitute fourteen percent of the land owned by the federal government within the Watersmeet District, one of the 900,000-acre2 Ottawa National Forest's six ranger districts. Sylvania was not always "unique." Once it was much like other lands hunted by the Chippewa and Ottawa 1The University of Michigan, School of Natural Resources, Sylvania (Published with the cooperation of the Forest Serv1ce, U.S. Department of Agriculture: Olsen Publishing and Printing Company, 1965), pp. 4-5. 2 O I I I Forest SerV1ce net ownersh1p; gross s1ze 13 1.5 million acres. 24 25 Indians.3 Unlike surrounding terrain, however, it survived relatively unscathed4 the impact of the first waves of "5 During this period miners and loggers across the "U.P. Sylvania was protected inviolate by its private owners as their personal hunting and fishing preserve. Today, pub- licly owned, it exists as a remnant of our northwoods virgin forest and wild lake heritage, valuable because "untouched" areas of this kind now are rare in this reg— ion.6 Such areas have distinctive and important 3U.S., Department of Agriculture, Forest Service, A Study of Proposed Federal Purchase and Fgrest Service Management of the Lands and Waters of the Sylvania Tract Iocated within Ottawa National Forest, Michigan (Waukesha, Wis. [MilwaukeeT} DeIzeEILithograph Company, 1964 [1965], p. 5. 4Most of the pine was cut in the late 1880's or early 1890's. At this time there were virtually no markets .for hardwoods and hemlock, and these species were not cut. 5Professor Willis Frederick Dunbar provides these dates in his chapter on "The Upper Peninsula, 1865-1960" (Michigan: _A;History of the ngverine State [Grand Rapids: WiIliam P. Eerdmans Publishing Company, 1965]): The copper rush, principally to Houghton County, began in 1844 and Michigan copper production reached its height in 1916; iron mining began in 1846, and the State's iron production reached its heightin 1920; the migration of lumbermen to the Upper Peninsula began in the 1880's, lumber production in Michigan hit its height in 1888, and by 1910 the lumber- jacks were beginning to move on. See also: Stewart H. Ihalbrook, Holy Old Mackinaw: A Natural History of the Anmuican Lumberjack (New York: The Macmillan Company, 31938); and Stewart H. Holbrook, Irog_Brew: A Century of American Ore and Steel (New York: The Macmillan Company, 939). 6The 747,128-acre Boundary Waters Canoe Area in northern Minnesota is "unique in the National Forest Wil- derness System--it is the only lakeland Wilderness," 26 scientific, educational, cultural and recreational values, as proponents of wilderness preservation—-including Forest Service employees Art Carhart, Aldo Leopold and Bob Marshall--have been pointing out since the early 1920's.7 Geological and BiolOgical Characteristics Sylvania is an offspring of glacial action. For 25,000 years, ice of the Pleistocene age coursed across its billion-year-old bedrock. When, about 10,000 years ago, Sylvania emerged from the last continental glacier, its form was much as it is today. Hundreds of feet of glacial moraine, characterized by broad rolling hills and lowlands studded with lakes and ponds, is the result. according to Search for Solitude (U.S., Department of Agriculture, Forest Service, PA§42 [Washington, D.C.: Government Printing Office, 1970], p. 30). Stewart M. Brandborg, in A Handbook on the Wilderness Act (Washington, D.C.: The Wildérness—Society, 729 15th Street, N.W., 1970, pp. 41 and 48), lists seven additional areas in the Michigan-Wisconsin-Minnesota region as candidate areas for possible inclusion by Congress in the National Wilderness Preservation System.. These include Isle Royale National Park and several national wildlife refuges. See also: John William Humke, "A Comparative Study of Four State Natural Area Systems with Recommendations for Michigan" (unpublished M.S. thesis, Michigan State University, 1970), ch. 3. 7Arthur H. Carhart, a landscape architect, rec- ommended in 1922 that the wilderness of what was to become the Boundary Waters Canoe Area be preserved; Aldo Leopold, as Forest Supervisor of the Gila National Forest in New Mexico, won the establishment of the Forest Service's first designated "primitive area"--the Gila--in 1924; Robert Marshall, as director of the agency's recreation division in the 1930's, oversaw expansion of the Forest Service's primitive area system and helped organize The Wilderness Society. 8Forest Service, Study of PrOposed Federal Purchase of Sylvania, p. 7. 27 Straddling the Mississippi River-Lake Superior (St. Lawrence River) divide at elevations ranging from 1,700 to 1,860 feet, the Sylvania area receives an average of 34 inches of precipitation annually, including 150 inches of snow. The vegetative cover holding its sandy and gravelly loam 301139 in place and thriving in this long winter-short summer environment is the climax forest of the region--the northern hardwoods-hemlock type--sup- plemented by other species. Scattered groups of "monarch" white and red pine (including the largest known red pine in North America), white cedar swamps, bog-margin stands of black and white spruce, balsam fir, and tamarack, and an understory including ironwood and moose maple provide relief from the closed canopy of the sugar maple-yellow birch-basswood-eastern hemlock climax forest monotype. Groves of paper birch, jack pine, and trembling and big- tooth aspen and occasional specimens of black cherry, red maple, black ash, white ash, American elm, and red oak10 bear witness to the harsh effects that wind, sleet, frost cracking, snow breakage, drought, sunscald, flooding (including beaver impoundments), and browsing have had on 9See U.S., Department of Agriculture, Forest Service, Sylvania Area Soils Report (Milwaukee: June 1966). 10Forest Service, Study of Proposed Federal Pur- chase of Sylvania, pp. 8-9. 28 the climax forest from time to time,11 disturbing the soil, letting in sunlight, and temporarily providing ideal con- ditions for these sun-loving species. Forest fires have not occurred in Sylvania "except for minor unimportant acreages burned years ago."12 The area is referred to by the Forest Service as "near-virgin"l3 because "white pine was logged at the turn 14 and because "240 acres . . . were clear- of the century" cut during World War II, . .1. a small salvage cut [because of windthrow] was made a few years ago, [and] a few acres near lodges and guard cabins were clearcut for fuelwood 30 to 60 years ago."15 Abundance of surface water and extraordinarily high water quality are two keys to Sylvania's pOpularity as a recreation area. 'Some 4,100 of the area's 21,000 acres are water surface. Thirty-six named lakes and as 11R. N. Cunningham, Forest Resources of the Lake State Region (U.S. Department of Agriculture, Forest Re- source Report Number 1 [Washington, D.C.: Government Printing Office, 1950]), pp. 28-29. 12Forest Service, Study of Proposed Federal Pur— chase of Sylvania, p. 11. 13 Ibido' p. 10 14Ralph D. Kizer, "Sylvania the Way It Is," speech presented by the Forest Supervisor, Ottawa National Forest, to the Vilas County Chamber of Commerce, Phelps, Wis., Sept. 8, 1961, p. l. (Mimeographed.) 15Forest Service, Study of Proposed Federal Pur- chase of Sylvania, p. 11. 29 many unnamed lakes provide sixty-six miles of shoreline. Six of the lakes are over 250 acres in size. Perched high on the watershed, Sylvania's lakes are described as "young and fragile."16 Most have no inlet; only three have flow- ing outlets. Not only can they easily be polluted but, practically sterile, they can easily be over-fished.17 For these reasons, the lakes' relatively few but large gamefish are being protected with special fishing regulations.18 Sylvania long has been famous for its white-tailed deer population (a browse line is evident) and high deer hunter success record.19 Private clearcut areas around Sylvania provide excellent summer range, while Sylvania, with its tight overhead cover, is good winter range. Previous owners of Sylvania and the Land O' Lakes Sports- men's Club attracted deer for many years by providing lGIbid., p. 8. 17U.S. Forest Service, Information and Education [Division], "Sylvania," Milwaukee, n.d., p. 2. (Mimeo- graphed.) 18In some lakes, fish taken must be returned to the same waters; in other lakes, unusually large minimum size limits have been established. Only artificial lures may be used. See U.S., Department of Agriculture, Forest Service, "Sylvania Recreation Area" (Map containing special fishing regulations [Milwaukee: Forest Service Regional Office, 1967, revised 1970]). 19"Where Deer Are," Detroit Free Press, Nov. 7, 1965. 30 hay.20 Black bear are present in Sylvania, as are coyotes, otter, mink, beaver, porcupine, snowshoe hare, ruffed grouse, woodcock, loons, and pileated woodpeckers. Fish- ers, once extinct in Michigan, have been re-established and can be found in Sylvania. Waterfowl use the area's lakes during migration. Within the area is a blue heron rookery attracting some 100 herons annually.21 Bald eagles nest and reproduce in Sylvania, making it a wildlife refuge to the extent that a Forest Service policy provides special protection to rare species of wildlife on national forest lands. Difficult to put into words is the "wilderness atmosphere"22 attributed to Sylvania. Forest Service documents can describe the area as "singularly unspoiled" and proclaim that "today it stands virtually alone as a testament to a former grandeur that has all but disappeared from a great territory."23 But the peace of mind that accompanies a period of solitude in even such a small "island" of wildness as Sylvania has to be experienced to be appreciated. 20A. Richard Guth, Recreation Office, Ottawa National Forest, personal letter, Nov. 24, 1970. 21U.S., Department of Agriculture, Forest Service, "Sylvania Recreation Area" (Map with text section entitled LA Wildlife Domain" [Milwaukee: Forest Service Regional Office, 1967] ) . 22Forest Service, Study of Proposed Federal Pur- chase of Sylvania, p. 38. 231bid., p. 7. CHAPTER IV SYLVANIA: LAND-OWNERSHIP HISTORY The "Sylvania Tract" as described in the 1965 prospectusl constituted all of Michigan Townships 43 and 44 North, Range 40 West, and parts of Sections 31, 32, and 34 of Township 45 North, Range 40 West--"l4,000 acres of practically untouched forests . . . [plus] a total of 4,000 acres of clear northland waters."2 The present Sylvania Recreation Area includes not only this acreage but also 3,000 acres of contiguous Ottawa National Forest lands, making it a management unit of some 21,000 acres. The native Indians lost their right to occupy the western part of Michigan's Upper Peninsula in 1842 with the signing of the Treaty of La Pointe.3 In 1873, the United States bestowed the first land patents of record in T44N, R40W on Ebenezer Hubbard (544 acres) and on Iremus K. Hamilton (480 acres). In 1884, land patents in lIbid.; see "Proposed Development Plan" map, inside back cover. 2University of Michigan, Sylvania, p. 5. 3Dunbar, Michigan, p. 361. 31 32 this township were granted to George M. Wakefield (7,086 acres) and to William Watson (1,500.5 acres).4 The Sylvania Club is Organized With the turn of the century came the acquisition of these and thousands of acres of contiguous wildlands by the newly organized "Sylvania Club" and the exclusive use of these acres as a "private playground for wealthy people."5 4"History of Ownership of Sylvania Club and Related PrOperties," two-page document supplied by L. Wayne Bell, Lands Officer, Ottawa National Forest, Ironwood, Mich., 1970. (Photocopy.) 5Kizer,."Sylvania the Way It Is," p. l. The "History of Ownership" document (footnote 4, above) pro- vides these details: In 1901, an officer of the United States Steel Corporation, Thomas Cole, bought the former Watson tract from the Illinois Steel Corporation for $6,000, deeded a one-sixth undivided interest in this property to each of five other U.S. Steel executives (James Gayley, Thomas Morrison, D. M. Clemson, W. E. Corey,.and D. G. Kerr), and kept a one-sixth undivided interest in this 1,500-acre tract for himself. In 1902, this "Sylvania Club" group purchased an additional 10,818 acres in several transactions. In 1903, Kerr sold a one- twelfth interest to a Mr. Walker who in turn sold it to Otto Davidson. Between 1903 and 1918, the club consoli- dated its ownership in T44N, R40W by purchasing several more small tracts. In 1920, Cole sold his one-sixth in- terest to copper magnate William Boyce Thompson, and by the end of 1923 Thompson owned a two-thirds undivided in- terest in the club pr0perty, having also purchased the one-sixth interests of Gayley, Morrison, and Clemson. In 1922, Davidson received patent from the United States for all the islands in "Sylvania" not previously patented and deeded them to the club members according to their re- spective interests. Ownership of Thompson's two-thirds interest passed to his daughter, Margaret Schulze, in 1928, upon his death. In 1940, Margaret Schulze, who had a- h " we "1 '. vl 1 or" o . .m... .. u . . -. . . . . ‘7-- .. _ e -v.- ‘- 33 By 1943, after 42 years of existence, the Sylvania Club's holdings had been consolidated to the point where they were held by only two peOple: Laurence P. Fisher of Detroit, who owned a three-fourths interest in the club's 14,000 acres, and C. M. Christiansen of Phelps, Wisconsin, who owned the other one-fourth interest in the club's lands. In that year, Fisher and Christiansen signed an agreement giving one party the Option to buy the other's interest if he could equal the highest outside offer for it. Christiansen died in 1954, willing all his in- terests in the Sylvania area to his two sons, Philip C. and Robert L. Christiansen. L. P. Fisher died intestate in 1962, and the L. P. Fisher Real Estate Liquidating become the wife of Anthony J. Drexel Biddle, Jr., ambas- sador to Poland, sold her title to two-thirds of Sylvania to Fred Fisher. C. M. Christiansen of Phelps, Wis., who had become a club member in 1937 with his purchase of Davidson's one- twelfth interest, enlarged his club holdings with the purchase of the one-sixth interest of the Corey heirs in 1941. After Fred Fisher's death in 1942, Laurence P. Fisher of the Fisher Body Corporation family of Detroit purchased the two-thirds interest in the club from the Fred Fisher heirs for $175,000. In 1943, Laurence Fisher bought from the Kerr heirs their one-twelfth interest in Sylvania and also purchased the Maplewood Hunt Club and other lands in T44N, R4lW from the Gogebic Timber Company. In 1944 he purchased part of the Snap Jack Lake pr0perty and in 1955 purchased the balance of the Snap Jack prop- erty, including buildings, from Sarah King. L. P. Fisher's last Sylvania area purchase was NE NE Section 5, T44N, R40W, bought in 1957 from Mary Kelley. .- u ' , e.- .- n ‘ -ov‘ "' ‘. ~v -‘ . - — fl .. .u- . ‘ ' .a ' ... . -- . . .7“ —p I. o A. l 7v. ,. .. . _ I ""u-) - .- ._ _ D: *.... O . ‘ . ".- . e‘ 1 u.. ~- .' . ' -. 3. . ‘ b - a e ‘. _ . K -. u . . . '- . ‘~ 34 Trust, set up in 1963, listed his widow, four brothers, three sisters, a nephew, and a neice as heirs.6 The Fisher heirs sold all their interests in their lands in T44N, R41W (land which lies to the west of the "Sylvania Tract" proper) to L. P. Fisher's widow, Dollie May Fisher, in 1963. Forest Service Negotiations When the Fisher heirs (through the executor of the estate, the National Bank of Detroit) made known their desire to dispose of several of their properties including Sylvania to settle the estate,7 word regarding this state of affairs was conveyed to members of the Michigan Con- gressional delegation. One such contact involved commu- nication between the Forest Supervisor of the Ottawa National Forest at the time, John O. Wernham, and Miss Muriel Ferris, legislative assistant to United States Senator Philip A. Hart.8 Support for Forest Service acquisition of Sylvania came from many quarters. On November 27, 1963, the Gogebic County Board of Supervisors, concurring with earlier 6Forest Service, Study of Prgposed Federal Purchase of Sylvania, p. 9. 7University of Michigan, Sylvania, p. 7. 8John O. Wernham, private interview held in Duluth, Minn., July 24, 1970. 35 resolutions by the Watersmeet Township Planning Commission and the Watersmeet Township Board, approved a resolution encouraging the U.S. Forest Service to attempt to purchase the Sylvania property but qualifying its support of federal acquisition with provisos calling for preservation of the tax base, for opportunities for private persons to purchase lake frontage in Sylvania to increase the tax base, and for future renegotiations with Watersmeet Township, ap- parently in connection with taxes or payments in lieu of taxes.9 The Fisher heirs, on the basis of the deceased's expressed desire to keep the land intact under some kind of conservation management program, looked with favor on the U.S. Government as a possible buyer. In 1964, repre- sentatives of the Forest Service, U.S.D.A. were allowed to enter the property to carry out a timber survey and in- spect the buildings. This was the only opportunity Forest Service personnel had to enter and evaluate the property pmior to actual transfer of the title to the United States in 1966. The timber in Sylvania was estimated at that time to be worth $4 million.]'0 On April 16, 1964, the Michigan Conservation Com- ndesion (now the Natural Resources Commission) adopted a 9Forest Service, Study of Proposed Federal Pur- chase of Sylvania, p. 49. 10Forest Service, "Sylvania," Milwaukee, p. 1. 36 resolution stating that Sylvania's "acquisition by the U.S. Forest Service and management of the Sylvania Na- tional Recreation Area would best serve the public in— terest." Passed after a presentation to the Commission had been made by Forest Supervisor Wernham, this resolu- tion was sent, on the day it was passed, to every member of the Michigan Congressional delegation.11 The Ottawa National Forest's annual report for fiscal year 1964, released on September 1, 1964, included these modest remarks regarding Sylvania: Following a request from members of the Michigan Congressional Delegation, the [staff of the Ottawa National] Forest examined and submitted a preliminary report on the desirability and feasibility of the acquisition of the Sylvania Tract by the Forest Service. This near virgin tract . . . is a unique reminder of the magnificent unspoiled northwoods of bygone years. The Gogebic County Board of Supervisors and the Watersmeet Township Board initiated action to have the Forest Service consider acquisition of this important tract.12 The idea that the Forest Service should acquire Sylvania was not without vocal opponents, who predicted dire results as a result of the possible loss of $30,000 hlreal estate taxes paid annually by Sylvania's private cwmers to Gogebic County, Watersmeet Township, and 11Forest Service, Study of Proposed Federal Pur— ghase of Sylvania, p. 50. 12U.S., Department of Agriculture, Forest Service, Ottawa National Forest: Progress Report, Fiscal Year fl (Ironwood, MichU , p. 7. 37 Watersmeet Township School District.13 These opponents of public acquisition favored the proposal of another poten- tial purchaser, a private partnership which was "nearly successful" in buying Sylvania.l4 The plans of this partnership were described as follows in the August 24, 1964 edition of the Ann Arbor News: If successful in their attempt to purchase [Sylvania], they plan a huge recreational complex of cottage development, with sh0pping centers, marinas, apart- ments and resort hotels, convention facilities, dude ranches, and winter sports areas. Opponents of federal land purchases in the Upper Peninsula included a group called Forum on Resources of Upper Michigan (FORUM). The November 6, 1964 issue of the Escanaba Daily Press provided an account of a tour of Sylvania on the previous day by members of FORUM's execu- tive committee: Lynn Sandberg (Celotex Corporation), William Vesser (Upper Peninsula Power Company), Richard Hammerschmidt (Cliff-Dow Chemical Company), Bruce Buell (American Can Company), and Dr. Hereford Garland (Michigan Tedhnological University). They were led on their tour by Sylvania part-owner Philip C. Christiansen. This quota- tion, apparently meant to express the opinion of the group, was attributed by the Daily Press to Dr. Garland: 13Forest Service, Study of Prdposed Federal Pur- chase of Sylvania, p. 25. 14 Kizer, "Sylvania the Way It Is," p. 2. 38 Our interest . . . in the tract is in line with our concern that forest properties not be taken off the tax rolls and made into government operations without good reason in the public interest . . . The Christiansens have the first claim on the property if the Fisher Estate disposes of its interest and Philip Christiansen told us that he and his brother would exercise this option. . . . The Christiansens want to take over and manage the property on a multiple use basis. (This means producing timber and also provid- ing recreation.) . . . It appears necessary to counter the conflicting and derogatory rumors which have been circulated with an objective statement. The basic feasibility and basis of the proposal that the tract be acquired by the U.S. Forest Service needs careful scrutiny by all concerned. Sylvania represents an opportunity for a totally new type of resort home community development. . . . The fiasco of the Isle Royale National Park and its costly failure to lure public recreationists cannot be used against Sylvania, for the conditions are not comparable. The proposal of the U.S. Forest Service states that there will be 835,000 man days of recreational use of the tract by the 10th year it is under federal ownership. . . . Can Watersmeet Township's economic dilemma afford to wait? In the midst of the struggle for approval of its Sylvania Tract acquisition pr0posa1, the Ottawa National Forest was given,.free of charge, 1,100 acres adjoining the southwest side of the Sylvania Tract with 1—3/4 miles of common boundary and including several lakes and access to the Cisco Chain of Lakes. The land was bequeathed to the Forest Service by Juliet T. Goodrich of Chicago.15 The preliminary report to the Michigan Congres- sional delegation referred to in the Ottawa National Forest's annual report was expanded to become an 15Forest Service, Ottawa National Forest: PrOgress Report, p. 7. "I u o- a- ,n .a- ... _ ~e- v '1..- _ l '1 ‘l o .__I '. ~ ., ‘ u "a. .- 39 illustrated, 64-page booklet entitled A Study_of Prgposed Federal Purchase and Forest Service Management of the Lands and Waters of the Sylvania Tract located within Ottawa National Forest, Michigan. Released to the public by the Forest Service early in 1965, and containing a proposed development plan map, this study produced by the staff of the Ottawa National Forest at Ironwood, Michigan not only provided the agency's rationale for its acquisi- tion of the area but laid out in detail the agency's tentative plans for the development, management and future use of the area. This booklet was not only distributed to Congress- men. Potential supporters in Michigan and Wisconsin re- ceived c0pies of it as well.16 One thousand copies were printed.17 16For example, Regional Forester George S. James mailed a copy to the late James Rouman, Executive Director, bfichigan United Conservation Clubs, Lansing on Feb. 19, 1965 with a covering letter stating, in part: ". . . We believe this report will be of interest to you. The Sec- retary [of Agriculture] has decided that Federal ownership of Sylvania is feasible and in the public interest. He has instructed us to proceed with the initial steps point- ing to acquisition of the Tract. If you have further questions about this proposed acquisition or if there are aspects of the case on which you would like more informa- tion, please advise." 17Richard Guth, Recreation Staff Officer, Ottawa National Forest, private interview, East Lansing, Mich., Oct. 7, 1970. 40 Because they sum up very well a lengthy and im- portant Forest Service statement on its future plans for Sylvania--a statement which was widely circulated--the "Conclusions" and "Recommendations" sections of this study are reproduced herewith (emphasis supplied): Study Plan Conclusions The Sylvania Tract, an area of national significance, should be acquired by the United States Government for the following reasons: 1. The Outdoor Recreation Resources Review Commission in its report to the President and to the Congress in January 1962, stressed the importance of vigor- ous, well-directed actions to meet the needs of the American public for outdoor recreation oppor- tunities now and for the future. These actions are needed to preserve, develop, and make access- ible to all the people the area and facilities' necessary afid desirable to assure the physical, cultural, and spiritual benefits of outdoor recreation. The forests and waters of Sylvania, located within a day's drive of the population centers of the midwest, offer a rare opportunity to help meet present and future needs for public outdoor rec- reation. This opportunity to serve the public interest, unless soon acted upon, may be irre— trievably lost. Acquisition of the Tract by the United States Gov- ernment would be in full accord with the intent and purpose of the Land and Water Conservation Fund Act of 1965 (P.L. 88-578; Stat. 897). This Act was signed into law September 3, 1964, to establish a fund to assist state and Federal agen- cies in meeting present and future outdoor recrea- tion demands and needs of the American people. Intensive mana ement of these lands for outdoor recreation, h1gh quality forestdproducts, water- shed, and wildlife and fish purposes can best be assured under the traditional principles of 41 multiple use and sustained yield of the Forest Service, U.S. Department of Agriculture. The Sylvania Tract lies within the boundaries of the Ottawa National Forest. The facilities and staff of this National Forest are already available to assume responsibilities for administering, protect— ing, and developing this area in the best public interest with maximum efficiency and economy. The greatest value of the Sylvania Tract, socially and economically, lies in keeping the Tract intact so that balanced use of its unique endowment of rich resources can be sustained and enjoyed by the public now and by generations yet to come. Forest Service management can assure the maintenance of the Tract's values. Development of Sylvania as a public recreation area would draw more tourist travel into the Upper Peninsula of Michigan. Its unusual attractions would encourage recreationists to extend their stay in what is presently an economically depressed area. Development and management of Sylvania under prin- ciples of sustained and balanced use could well act as a catalyst in improving the local economy. Complementary private development of service cen- .ters, resorts, and recreation residences in the surrounding area could well result in a recreation complex of major economic significance. Attrac- tions such as Sylvania have often proved to be centers around which private investments develop and flourish. These in turn provide a more diver- sified and stable tax base for local governmental services. Gogebic County's economy has been primarily based upon iron ore mining since 1884. The importance of this local industry has drastically diminished. Employment in the Gogebic County mines decreased nearly 80% within the last decade. Logging and milling, the next most important industry in the County, declined since World War II. One of the principal means to improve the local economy is to produce an expanding yearlong recreation industry. A key factor in bringing this about would be the acquisition and development of the Sylvania Tract's recreation resource for public use coupled with multiple use management of other renewable surface resources. I” -a- 42 8. The Sylvania Tract offers advantages for research and educational purposes which are not available elsewhere. Scientific investigation in the prov- inces of water quality, recreation-user preferences, wildlife habitat, and timber quality, to name a few, are possible. The findings would have appli- cation in the wide field of resource conservation and use. Conservation education could be dispensed to university groups using the area as a field laboratory and to visitors through a variety of interpretive services. The Tract would serve as an excellent multiple use demonstration area. 9. Water frontage having recreational value in Gogebic and Vilas Counties is and will continue to be predominantly in private ownership. Lakes within the Tract would be used to meet accelerating de— mands for public water recreation. 10. The State of Michigan and Gogebic County are not in a position to purchase, develop, and operate this property. There is much public support for purchase of this Tract by the United States as part of the Ottawa National Forest. The expressed interest of Gogebic County, Watersmeet Township, the Michigan Conservation Commission, and others in having this area acquired and developed under National Forest programs places a responsibility on the Forest Service, U.S. Department of Agri- culture, to actively work toward acquiring the Sylvania Tract for the public benefit. The op- portunity for such purchase is limited and requires prompt action. Study Plan Recommendations In view of the findings and conclusions reached in this study and in recognition of the rare and unique Opportunity the Sylvania Tract offers to serve the long-term needs of the American public for outdoor recreation, the following recommendations are made: 1. That the United States acquire all title interest in the Tract. The Forest Service should proceed at once to obtain an option from the principal owner. 2. That the land and water resources of Sylvania be managed by the Forest Service under its 43 traditional principle of multiple use and sustained yield with full recognition given to the outstand- ing recreational qualities of the area. 3. That to best serve the public needs, a program of development and intensive management should begifi_ promptly upon vesting titIe in the United States. The development program should be completed as rapidly as demands and funds justify. 4. That, in the interests of maximum efficiency and economy, the Tract be made a part of the Ottawa National Forest for purposes of administration and management. 5. That, in recognition of the importance to local governments of tax revenues from this Tract, some measure of "in-lieu-of-tax" payments be considered which will minimize the adverse effects upon af- fected government units during the period of transition from private ownership to full develop- ment and management under Federal control. Another prospectus-~a handsome, 20-page, four- aflpr booklet entitled simply Sylvania, and released in lurch, l965--was prepared in Ann Arbor, Michigan during the same period that the Forest headquarters staff at Ironwood was working on its study. Professor Kenneth P. Davis, at that time chairman of the University of Michi- gands Forestry Department (now on the faculty of Yale University's School of Forestry}. described his role in this project, and the project's significance, in recent Correspondence: I became involved in the areas soon after it became known that the tract was available for sale. It seemed to me, along with rather general Opinion, that the tract should go into public ownership rather than be privately develOped. A grant of $10,000 was made available by the American Conservation Association of New York to the School of Natural Resources of the 44 University of Michigan to make a study of the matter and prepare a report for general distribution. I became Director of this project. In close cooperation with the Forest Service, and various others, the brochure "Sylvania" was printed. . . . This brochure was widely distributed at the time of the hearings and actions on the Sylvania purchase. I think it correct to say, and the Forest Service supports this, that this brochure had a great deal to do with mustering the general support needed to purchase the tract. . . . To a considerable degree, therefore, the brochure was the general basis of understanding on which the land was purchased. The Sylvania booklet concludes in this vein: "In UmzAmerican way of things, public endeavor requires pub- lic support. Sylvania is no exception; individual, organi- umional, and legislative support is needed. . . ." Wide mtflic distribution of the colorful Sylvania brochure mfincided with consideration of the Sylvania acquisition kmdget item by the Appropriations Committees of the United States Congress . Congressional Hearings On February 18, 1965, during hearings in Washing- txnh D.C. on H.R. 6767, the Department of the Interior and Related Agencies Appropriations Bill for 1966, Forest Service Deputy Chief M. M. Nelson gave this resPonse 18Kenneth P. Davis, personal letter to Martin E. Hanratty, May 12, 1970. Ottawa National Forest officers dealt directly with American Conservation Association Officials to obtain this grant, according to Richard Guth, Ottawa Forest recreation staff officer, personal interview, October 7 , 1970 . 45 (excerpted, emphasis supplied) to Senate ApprOpriations Subcommittee Chairman Carl Hayden's request for a justi- fication of the proposed Sylvania tract purchase: The Sylvania tract . . . is one of the outstanding opportunities for a purchase of land for use of the general public recreation [sic]. . . . We consider Sylvania extremely unique for recreational development. . . . It would be developed with recreation as the prime use. There would be some timber development. There would be research and education opportunities. There are some wildlife areas. There is some of the area that would be set aside as a natural area. Also in the educational field there is an opportunity for a regional study area for outdoor education in the con— servation field. Later in these same Senate subcommittee hearings, (Bairman Hayden received for the record Michigan Senator Hfilip A. Hart's statement of support for Forest Service acquisition of Sylvania: There is in the budget a prOposal from the Forest Service to spend the sum of $7,182,500 in the State of Michigan under the land and water conservation fund. The major portion of this money is for acquisi- tion of the so-called Sylvania tract in the Ottawa National Forest in the Upper Peninsula. I wish to record my support for this prOposal and my hOpe that the money will be made available promptly so that this magnificent area may be developed and managed for its full recreation and other resources. Four days later--on February 22, l965--Senator Hart's office distributed the following press release, .k 19U.S., Congress, Senate, Committee on Appropria- tions, Department of the Interior and Related A encieS~ A ro riations, Hearin s, before a subcommittee of the Comrruttee on Appropr1at1ons, Senate, on H.R. 6767, 89th Cong,, lst sess., 1965, p. 316. 201bid., p. 1745. .1" :n.-" . .r- ~ .- mn' ' ,u .. ’ l .A ‘V 46 reproduced here at some length, again because of its spe- cific exposition of the Forest Service's development plans for Sylvania and also because Senator Hart's approval of these plans clearly is implied, his office having issued the release: Senator Philip A. Hart and Congressman Raymond Clevenger (D-Mich) today announced that the U.S. Forest Service has agreed to buy the Sylvania Tract in the Upper Peninsula and is negotiating with the owners. The Sylvania Tract is 18,000 acres of privately owned woods and lakes in Gogebic County adjoining the Wisconsin border. In a letter announcing the impending purchase, Secretary of Agriculture Orville Freeman described it as "one of the most beautiful and un- spoiled tracts in the Lake States." Freeman told Hart and Clevenger that he proposes to add the tract to the Ottawa National Forest to preserve its natural beauty and develop its recreation potential. In a joint statement, Hart and Clevenger commented: "This is an excellent step toward development of the UP's great tourist potential. Moreover, it would create a new and needed payroll. The Agriculture Department estimates that development of the tract will require an estimated 625 man-years of work and a total expenditure of some $10 million. "This is in addition to the estimated $437,700 yearly operating costs that would continue indef- initely. "Selective timbering would also be allowed and the Department estimates that 21 million feet of saw timber and 400,000 cords of pulpwood could be cut in the first 10 years without injury to landscape or wildlife. "And, of course, the magnificent scenery, hunting and fishing can be expected to bring in thousands of tourists." 47 The two also noted that the Department of Agricul— ture report recommending the purchase suggests three ways to soften the tax loss to local governments. Currently, the local county, township and school district collect $30,000 annually in taxes from the tract. Hart and Clevenger said they would consult with local officials to decide which method might best help offset this loss. . . . Nine days after this release--on March 3, 1965-- Emputy Chief Nelson, during House hearings on H.R. 6767, responded to House Appropriations Subcommittee Chairman Winfield K. Denton's question, "For what purpose do you vent to acquire the 18,352 acres in Ottawa National Forest in Michigan?" with this statement (excerpted, emphasis supplied): Mr. Chairman, that is probably the most outstanding possibility that we have for the acquisition of a key recreation property in the Nation today. . . . we would propose to manage [it] with recreation as the chief resource. It has a lot of wildlife resource, in addition to other recreation. Our estimates are it would accommodate, after some development, about -—' 800,000 visitors a year. The State of Michigan has made some estimates of how much these visitors spend, and they say it is between $6 and $7 a day. So that would bring into the economy about $4 or $5 million. It has some old-growth timber . . . and we woulddpro- pose to do some selective cuttin of that timber as we open the entire tract. That cou d increase tHe veneer production on the Ottawa National Forest by as muEh as 21 percent. And we feel pOEitive that this can be done without hurting the recreational qualities of the land. . . . dollarwise it is no doubt the biggest single purchase we have ever proposed. This is a project we have gone into deeply and worked on an appraisal. . . . We have . . . worked with the Uni- versity of Michigan, and they have made a study of the management of this tract in relation to its effect on other recreation in the vicinity, both in Wisconsin and in Michigan. They indicate it would be desirable to manage this tract as we propose it in our report, -.En . u. ‘ tr 48 and it would have a beneficial effect rather than a detrimental effect on the other recreation economy based in the area in this vicinity. . . . We have worked with the State and they have recommended that this is a tract that we should buy completely, because it is all within the national forest. . . . There are other reasons also; I understand the State has other areas, especially closer to Detroit and the higher p0pulation centers of their own State. They feel the use on this Sylvania property is more in the nature of interstate use. This is because it is located on the west end of the Upper Peninsula, and most of the people would be coming from Minnesota, Wisconsin, Illinois, and even the people from Iowg make heavy use of this lake country for vacations.2 Perhaps the most comprehensive statement of the Ebrest Service's rationale for its acquisition of Sylvania, cmtside of its lengthy published prospectus, is contained in a "Statement on Sylvania" made by Ottawa National Forest Supervisor John O. Wernham to the Gogebic County Board of Supervisors on April 13, 1965. Included are references to "private interests . . . committed to having an . . . in- terest in grabbing the Sylvania Tract" and an emphasis on timber harvest opportunities under Forest Service management: The pros and cons of a publicly owned, developed, and managed Sylvania Tract have been under considera- tion for many months by the concerned local units of government and the citizens of Gogebic County. You have all studied the Sylvania reports by the Forest Service, the Christiansen Brothers, Watersmeet Town- ship, and the University of Michigan. 21U.S., Congress, House, Committee on Appropria- tions, Department of the Interior and Related Agencies A ropriations for 1966, Hearings,Ibefore a subcommittee o the Committee on Appropriations, House of Representa- tives, 89th Cong., lst sess., 1965, pp. 1546-48. 49 Support has been overwhelmingly in favor of ad- ministering this important tract as part of the Ottawa National Forest, providing that fair and equitable Federal payments in-lieu-of-taxes are provided in accordance with necessary new legislation. Insofar as I know, there are only one or two private interests that are now committed to having an active and strong interest in grabbing the Sylvania Tract. I believe that only a small number of local citizens are hopeful that such an interest will acquire Sylvania, whether or not the timber is selectively logged and recognizing that lake frontage sold for summer homes and resorts will bring increased returns in ad valorem prOperty taxes. Under private ownership of the Sylvania timber, there will be no expectation of the resulting estab- lishment of any additional sawmilling or timber proc- essing plants in GOgebic County. Present sawmilling capacity in this territory is more than sufficient to handle timber now available, including Sylvania, for harvest in this county and adjoining counties. Under national forest administration of the Syl- vania timber, it will be managed under the principles of multiple use and sustained yield. It will be sold by regular bidding process. Timber Operators, and including small Operators, will have an opportunity to purchase Sylvania timber stumpage in scales of various sizes from the National Forest. These many operators have as much or even a greater need for this timber than a single sawmill owner of the property who could be expected to process most, if not all, of the saw- 1ogs and veneer logs in his own plants. . . . I have never fished in the closed lakes of Syl- vania. I look forward, along with a large number of other sportsmen, to an opportunity to fish these waters and to enjoy them without observing the shorelines ringed with docks, cottages, and resorts. The waters of Sylvania should be open to public use and are especially deserving of the best possible care. Exploitation, through sale of the unspoiled lake frontage for summer home and resort use, will only add Sylvania's lakes to the long list of similarly used lakes and will not attract the great army of recreationists to the west end of the U. P. that a publicly and fully developed Sylvania would help to do. ‘- ‘. 50 We need a publicly developed Sylvania to better put the west end of the U. P. in the recreationist's plans as a must place to visit. A publicly developed Sylvania will attract more summer recreationists than almost all of the other existing and potential recreation developments on Ottawa National Forest lands. This will bring much higher use demands on other national forest recreation resources and also bring greater recreation business to the private sector in Gogebic and other adjacent counties. Thus you can have your cake and eat it too. I do not believe that you would wish to see Sylvania become a Coney Island type of development. There is grave doubt Sylvania's high quality waters under private exploitation would be safely and adequately protected from the dangers of pollution or that aesthetics of waterfront and roadside would be fully protected. It is hoped that appropriations to purchase Sylvania will be restored by the United States Senate. I am hopeful that conferees of both Houses in the Congress will agree to provide funds to acquire this all im- portant tract and its outstanding multiple use forest resources.. There is yet a good chance that this will be accomplished. This will be good news to many people who recently felt great despair when announce- ment was made that the House Appropriations Committee failed to provide funds for buying Sylvania this year. . . . As Mr. Wernham noted, the Bureau of Outdoor Rec- reation's Land and Water Conservation Fund federal land acquisition budget item for Forest Service purchase of Sylvania ran into Opposition in the House of Representa- tives' Appropriation Committee. That it did so is not particularly surprising, considering the total absence of specific support for the project in the House hearing record (other than the Forest Service testimony). The local Congressman, Raymond F. Clevenger, made a presentation 51 to the House Appropriations subcommittee on March 1, 1965 but said not one word to the subcommittee at that time about Sylvania.22 And none of the national conservation organizations, including the National Audubon Society23 and the National Wildlife Federation24 whose representa- tives testified in support of the entire Land and Water 25 Cbnservation Fund budget, mentioned Sylvania specifically. Senate sponsor Philip A. Hart privately expressed concern 22U.S., Congress, House, Committee on Appropria- tions, Department of the Interior and Related Agencies Appropriations for 1966, Hearings, before a subcommittee cf the Committee on Appropriations, House of Representa- tives, 89th Cong., lst sess., Part 2, 1965, pp. 638-9. (Mr. Clevenger did speak out on behalf of the Sylvania appropriation during House floor debate on the Interior appropriations bill on March 30, 1966 [Congressional Record, pp. 6321-6322].) 23 Ibid., p. 696. 24Ibid., p. 691. 25Neither had the Senate Appropriations subcommit- tee heard any national conservation group representative speak specifically in favor of the Sylvania appropriation. (U.S., Congress, Senate, Committee on Appropriations, Department of the Interior and Related Agencies Appropria— tions, Hearing, befOre a subcommittee of the Committee on ApprOpriations, Senate, on H.R. 6767, 89th Cong., lst sess., 1965.) Representatives of The Wilderness Society (p. 1856), the National Wildlife Federation (p. 1601), the American Institute of Park Executives (p. 1835) and the Citizens Committee on Natural Resources (p. 1839) did testify before the Senate subcommittee in favor of the entire Land and Water Conservation Fund budget as proposed by the Administration, which included the Sylvania project. bl um .1 , - _ u- .q. 4 \ i In:..| I -... ‘ - I ‘ "" an on b. 52 regarding the fate of the Sylvania appropriation, and sought more expressions of "grass roots" citizen support for it.26 While the struggle for the money to buy Sylvania was going on in Washington, delicate negotiations also were under way in Gogebic County, Michigan, between Forest Service representatives and the County Board of Super- visors. Federal purchase of Sylvania, it was understood by the Forest Service, hinged on endorsement of the proj- ect by the county in which the purchase unit was located. bbt only did the National Forest Reservation Commission traditionally require that the consent of the county board 26In a June 2, 1965 letter to Stewart Myers of (hand Rapids, president of the Michigan United Conservation Clubs (MUCC), Senator Hart stated: "On the Sylvania proj- ect we are completely at the mercy of the House conferees. . .'." Myers, according to correspondence on file at MUCC headquarters in Lansing, contacted numerous influential individuals on behalf of the Sylvania project, thanking Michigan Governor George Romney for his support of the proposal, asking Michigan members of the House to seek restoration of the Sylvania apprOpriation (Myers to Con- gressman John Dingell, April 27, 1965: ". . . we have become extremely disappointed in Billy [Sunday] Farnum [Member of Congress from Michigan's 19th District; Demo- crat; freshmen member of the House Appropriations Commit- tee] allowing the Sylvania Appropriation to be withdrawn from the House Appropriation Bill. . . .), and encouraging conservationists in Ohio to seek the support of Congressman Michael J. Kirwan--a House conferee--for the Sylvania apprOpriation. Letters to Congressmen urging passage of the Sylvania apprOpriation also were sent by Michigan members of the Sierra Club including Donald Kucera (now of Tucson, Ariz.) and Mr. and Mrs. Arthur Morley (now of San Diego, Calif.), according to Virginia Prentice, Chairman, Mackinac Chapter, Sierra Club, private interview, East Lansing, Mich., Oct. 21, 1970. 53 of supervisors be forthcoming before the Forest Service could negotiate to buy private lands with public money--a restriction adopted to protect county governments from having large portions of taxable land taken off their tax roles--but recent Department of the Interior and Related Agencies ApprOpriations Acts had included specific language to the same effect. For example, the 1966 Act stated: "Funds appropriated under this Act shall not be used for the acquisition of forest lands . . . without approval of the local government concerned."27 Promises Made to Gogebic County During this period of negotiations with the local governing body to win its firm support for Forest Service acquisition of Sylvania, certain understandings were reached in an attempt by the federal agency to make up for the local governmental units' anticipated loss of tax base. To understand the conditions which Gogebic County ultimately placed on its approval of the purchase, the economic climate in the area at that time should be considered. The area had been designated a poverty area. It suffered from high unemployment and outmigration rates. 27Public Law 89-53--June 28, 1965, under "Adminis- trative Provisions, Forest Service." 54 The 1960 population was down six percent from that of 1910.28 Therefore, the county was insisting upon not only an equitable method of payment in lieu of the tax loss which it would suffer if the land passed into public owner- ship, but also, hopefully, some way to bring new economic life into the area over the long run. Anticipated tax revenue loss, as shown in the 29 was a constant problem throughout these following chart, negotiations: Gross Annual Tax Loss Net Annual Tax Loss If Sylvania Possible If Sylvania is Purchased Offsetting is Purchased Tax by Forest Federal by Forest District Service Payments Service Gogebic County $10,200 $ 1,800 $ 8,400 Watersmeet Township 5,400 --- 5,400 Watersmeet School District 14,400 14,400 --- Total $30,000 $16,200 $13,800 The offsetting payments of $1,800 to Gogebic County would be limited to National Forest revenue-sharing 28U.S., Congress, Senate, Committee on Public Works, Opportunities for Economic Development in Michi an's U er Peninsula (Washington, D.C.: U.S. Government Print- 1ng Off1ce, I961), p. 1. 29Forest Service, Study of Prdposed Federal Pur- chase of Sylvania, p. 26. 55 payments amounting to 25 percent of gross receipts from the sale of timber and other resources. This figure was actually estimated to be $7,200, but under Michigan law only 25 percent of this would be available to the county itself. It was believed by the Forest Service that the $14,400 tax loss suffered by the Watersmeet Township School District would be offset by the board's participa- tion in the benefits offered under Sections 2 and 3 of Public Law 874, enacted to provide financial assistance to local educational agencies in areas affected by Federal activities. (This has proven to be the case.30) Waters- meet Township also would benefit from Forest Service con- struction in Watersmeet of a visitor information center (originally estimated to cost $150,000 but ultimately costing almost $500,000 to build and equip3l). 3OA. Richard Guth, Recreation Officer, Ottawa National Forest, personal letter, Nov. 24, 1970: "[Public Law 874] only considers lands acquired by the Federal Gov- ernment after December 31, 1938. The Watersmeet School District was not eligible for 874 funds prior to the acquisition of Sylvania. Our acquisition of Sylvania made them eligible." The district received $28,932 in 1966-67, $37,240 in 1967-68, and $28,308 in 1968-69 based on total federal ownership in the school district, resulting in a net increase in tax revenue since the public acquisition of Sylvania, according to Joseph E. Vestich, Watersmeet District Superintendent of Schools, personal letter, Nov. 4, 1970. See Appendix A. 31March E. Lefler, District Ranger, Watersmeet District, Ottawa National Forest, private interview, Watersmeet, Mich., July 22, 1970. The auditorium-equipped 56 Two bills were introduced in Congress by Senator Hart in 1965 to provide the county with in-lieu-of-tax payments on a declining scale over a period of years, but neither of the bills passed.32 visitor information service center, modeled after the Forest Service visitor center at the "entrance" to the Boundary Waters Canoe Area at Ely, Minn. and located at the junction of U.S. Highways 2 and 45, functions as a year-around conservation education facility and as a gateway to the western Upper Peninsula. Tourist- and sportsman-oriented maps and publications produced by both Federal agencies and the State of Michigan are distributed by its Forest Service staff, and interpretive services are provided. Annual operating budget for the center is $28,000. See Appendix A. 32$. 3456, introduced on Aug. 25, 1965 and S. 2655, introduced on Oct. 15, 1965. The text of S. 2456: "A bill to provide for certain payments to be made with re- spect to property acquired by the Secretary of Agriculture for national forest purposes in Gogebic County, Michigan, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in order to minimize the im- pacts upon the local tax authorities from the loss of tax revenues because of the acquisition by the United States for national forest purposes of the prOperty known as the Sylvania tract . . . which has constituted a substantial part of the tax base of the county and of Watersmeet Town- ship and Watersmeet School District, payments, as herein Specified shall be made as the close of the fiscal year from any national forest receipts not otherwise appro- priated. Such payments shall be made to the tax collector of the county of Gogebic for distribution to and use by the respective taxing authorities concerned in the same prOportion and manner as are taxes on other such property. The first such payment shall be made at the close of the fiscal year following the close of the last tax year for which taxes were assessed and levied on such property prior to its acquisition by the United States. The first such payment shall be equal to the amount of taxes last assessed and levied thereon, and thereafter for nine suc- ceeding years a like amount shall be paid. Each year 57 A great deal of attention was devoted by the Forest Service to the economic impact the recreation area would have on the nearby communities. The agency's following the first ten years the amount to be paid shall be reduced by 10 per centum of the original payment until the twentieth year and thereafter when no such payment shall be made." The text of S. 2655: ". . . To provide . . . That upon acquisition by the United States for national forest purposes of the property known as the Sylvania tract . . . payments as herein specified shall be made at the close of each fiscal year from any national forest receipts not otherwise appropriated. Such payments shall be made to the tax collector of the county of Gogebic for distribution to and use by Gogebic County, Watersmeet Township, and Watersmeet School District in the same proportion and manner as are taxes on other prOperty. The first such payment shall be made at the close of the fiscal year fol- lowing the close of the last tax year for which taxes were assessed and levied on such prOperty prior to its acquisi- tion by the United States. The payments to be made in each of the first five years shall be equal to three- fourths of 1 per centum of the purchase price of such prOperty to the United States. The payment to be made for each year during succeeding five-year intervals shall be the equivalent of the original payments adjusted at the beginning of each five years to reflect the current market value by applying the index of the statewide average value of farm real estate per acre as determined by the Secretary of Agriculture. Sec. 2. Not earlier than the close of the tenth fiscal year in which payments are made in accord- ance with Section 1 hereof, and before the end of the twelfth year of such payments, the Secretary of Agriculture, in collaboration with the governing Officials of Gogebic County, Watersmeet Township, and Watersmeet School Dist- rict, shall review the impact upon the tax revenues of the county, township, and school district of the acquisition of the Sylvania tract by the United States, including but not limited to the difference between the tax revenue which such taxing authorities might have received if such prOperty had not been acquired by the United States and the amounts being received by such authorities from the Federal Government because of the acquisition thereof, and also including but not limited to the actual or potential increase in tax and other revenue which could properly be .-' 9 -~ .7..- < . 5.. . n . ... | bo:<.. - -- .1 u... vi "ul‘.' Du I“. 'I ‘v.. u._ “v.1 o 'I ' \§.‘ A U ‘u .'.' 'v 5.1 -.'~‘ .1 ‘1' .. .. 58 purchase proposal envisioned recreational development costing $10,613,000; 800,000 visits were expected per year.33 An increase of $1 million to $1,300,000 in real personal income in the immediate area and the creation of 200 to 270 new jobs, both in Michigan and nearby Wisconsin, 34 was forseen. What concessions or commitments actually were made by the Forest Service during its Sylvania local negotia- tions? First, there is the official county board resolu— tion expressing the board's understanding of the situation: WHEREAS the Gogebic County Board of Supervisors adopted a resolution on December 2, 1963 encouraging the United States Forest Service to appraise and attempt to purchase the Sylvania Tract Property in Watersmeet Township; and WHEREAS the Sylvania Tract has been appraised and the Congress of the United States has appropriated certain monies for its purchase; and attributed to the development of such tract and the use of the recreational and other resources thereof and the rela- tion thereof to the services currently required to be fur- nished by such taxing authorities. The Secretary of .Agriculture shall report the results of such review and make such recommendations as may be appropriate to the Congress before the end of the thirteenth year. Sec. 3. The provisions of section 13 of the Act of March 1, 1911 (36 Stat. 961), as amended (16 U.S.C. 500), shall not be applicable to the lands covered by this Act." 33Forest Service, Study of Proposed Federal Pur- chase of Sylvania, pp. 54—57. 34 Ibid., p. 23. 59 WHEREAS the Watersmeet Township Board and Planning Commission and the Gogebic County Board of Supervisors have expressed their concern and diligently sought a solution to the problem of the resulting loss in tax base and loss of tax income to these local governmental units should Sylvania be acquired by the United States Forest Service; and WHEREAS United States Representative Raymond Clevenger and Mr. William Welsh, representing Senator Philip A.' Hart, have expressed concern over passage by the United States Congress of legislation introduced by Senator Hart and Congressman Clevenger which would provide in lieu of tax payments to local governments when the United States Forest Service acquired Sylvania; and WHEREAS the Gogebic County Board of Supervisors still recognize there will be significant long-term economic and conservation benefits to come from public ownership and development of the Sylvania Tract; and WHEREAS Senator Hart's representative, Mr. William Welsh, Representative Clevenger and officials of the United States Forest Service appeared at an informal meeting of the Gogebic County Board of Supervisors on June 3, 1966 and made certain commitments concerning the development of natural resources in the Watersmeet area; BE IT RESOLVED the Gogebic County Board of Supervisors favors the immediate purchase of the Sylvania Tract by the United States Forest Service. BE IT FURTHER RESOLVED that Representative Clevenger, Senator Hart and/or the United States Forest Service immediately after or before acquisition of the tract by the United States Forest Service make every effort to fulfill the commitments made to the Gogebic County Board of Supervisors at the informal meeting June 3, 1966. These commitments include: 1. All humanly possible efforts will be made to provide adequate in lieu of tax payments to Offset the immediate losses in tax base and resulting tax monies which will have a serious adverse effect on the gov- ernmental Operations of Watersmeet Township and Gogebic County. This may be done by legislation enacted by the United States Congress, payments made by one of the many philanthropic conservation organizations or by any other means which would not cause an additional burden on Gogebic County tax payers. 6O 2. All humanly possible efforts will be made to secure the necessary financing and proceed with the orderly planning and development of the Sylvania Tract for the utilization of all its natural resources. 3. The United States Forest Service will plan and construct and Operate a Visitor Information Service Center similar to the present Ely, Minnesota Visitor Information Service Center on the Superior National Forest. 4. The United States Forest Service will prepare a prospectus and solicit bids for the development of a major resort within Watersmeet Township. This resort will be comparable in scope to the Gateway Inn at Land O'Lakes, Wisconsin or the Northernaire at Three Lakes,. Wisconsin. ' 5., The United States Forest Service will prepare a prospectus and solicit bids for a major ski area development at Paulding Hill. 6. The United States Forest Service will proceed with the construction of a dam to increase the depth of Sucker Lake and work with the Michigan Department of Conservation in making this increased water body into a significant sport fisheries. 7. The United States Forest Service will immediately proceed with the detailed planning for the Black River Recreation Area and will make every effort to secure the funds needed to initiate major development work by July 1, 1967. IN addition to the aforementioned items, the Gogebic County Board of Supervisors respectfully requests that the United States Forest Service consider including County Roads 206 and 210 into the Ottawa National Forest road system and maintain and/or reconstruct these roads to the standards required by the Forest Service. Be it further RESOLVED, that the United States Forest Service have an annual meeting with the Board of Super- visors to discuss their plans for the development of county resources in Gogebic County. BE IT FURTHER RESOLVED, that copies of this resolution be sent to Secretary of Agriculture Orville Freeman, United States Senators Philip A. Hart and Robert P. Griffin, Congressman Raymond Clevenger, Governor ":1 .,.. \ . 61 George Romney, State Senator Joseph S. Mack, State Representatives Russell Mellman and James K. Con— stantini, Edward Cliff, Chief of the United States Forest Service, George S. James, Regional Forester, Region 9, Ottawa National Forest Supervisor M. W. Kageorge, Wayne H. Aspinall, Chairman, Public Land Law Review Commission, and Paul H. Carlin, Assistant Director for Federal Ownership Problems. Moved by Supervisor Basso, supported by Supervisor Nezworski, that the foregoing resolution be adOpted and that the Board of Supervisors drawup a plan for the establishment of a trust fund to be drawn from for the payment to Watersmeet Township, Watersmeet Township School and Gogebic County in lieu of taxes. Motion carried. STATE OF MICHIGAN ) )SS COUNTY OF GOGEBIC ) I, Rudolph J. ngzi, Clerk of the County of Gogebic, do hereby certify that this is a true copy of a reso- lution which was adopted at the Board of Supervisors meeting held June 15, 1966. Secondly, we have the current Ottawa National Forest supervisor's recapitulation of the agency's "posi- tion in a nutshell on buying Sylvania": We promised to develop it primarily for a variety of recreational Opportunities, but not to exploit it or, if you will, "liquidate" the recreational develop- ment opportunities for short-term economic gain. We promised to maintain the high quality of Sylvania's waters. We promised to utilize Sylvania's timber on parts of the tract where there would be no material conflict with recreation. We promised to protect and to provide better habitat for wildlife, again on portions of the tract where there would be no material conflict with other recreation uses. 62 We promised to develop other recreational attrac- tions in the surrounding Ottawa National Forest which would complement Sylvania and help bolster the economy of the area. We promised to construct a Visitor Information Service Center at the junction of Highways 2 and 45 in Watersmeet. We promised to provide better access from Wisconsin. Additionally, there was an unwritten condition agreed upon to the effect that the Forest Service would not buy a resort site on Long Lake, to permit private in— terests to develop this site and thus provide a source of tax revenue for the county.36 A major portion of Long Lake lies within the Sylvania area. Were these concessions necessary? According to Supervisor Kizer, these commitmentsfiwere not made merely to placate local individuals who may have had selfish aims. These were commitments we fully believe--and still believe-- to be desirable and necessary. These were Commitments made honorably by the Forest Service to honorable men. We are not now going to back away from these commitments. 35Kizer, "Sylvania the Way It Is," p. 4. 36John O. Wernham, private interview, Milwaukee, Wis., July 20, 1970. 37Kizer, "Sylvania the Way It Is," p. 4. The expression, "the service was trapped into making conces- sions," was used by Forest Service personnel during a conference with them in Milwaukee on July 20, 1970. 5.4" c n” - no u- On. ‘5. 63 However, the Department of the Interior and Related Agencies Appropriation Act for Fiscal Year i2§1_(Public Law 89-435, signed on May 31, 1966) no longer included language requiring approval by the "local government con— cerned" of Forest Service land acquisition projects.38 Congress ApprOpriates Acquisition Funds And how was the struggle in Washington resolved? On June 14, 1965 members of the "committee of conference on the disagreeing votes of the two Houses on the amend- ments of the Senate to the bill (H.R. 6767) making appro- priations for the Department of the Interior and related agencies for the fiscal year ending June 30, 1966" sub- mitted their conference report to their respective Houses. Sylvania was mentioned favorably in the conference com- mittee's recommendations: Amendment No. 18: Allocates $17,300,000 of the land and water conservation fund to the Forest Service instead of $12,000,000 as prOposed by the House and $19,785,150 as proposed by the Senate. The increase provided over the House bill includes: $300,000 for Forest Service wilderness areas in Idaho and $5,000,000 for the Sylvania tract in Michigan. 38And Sylvania actually was purchased with "Fiscal 1967 money," according to John Wernham, personal interview, Milwaukee, Wis., July 20, 1970. 39U.S., Congress, House, De artment of the Interior and Related A encies Appropriation BiII, IQQE, Report No. 5I3, 8§tH Cong., 1st sess. (House Reports, Jan. 4-Oct. 23, 1965 [Washington, D.C.: Government Printing Office, 1965]), p. 8. 1.. h. 64 Therefore, when the Department of the Interior and Related Agencies Appropriation Act of 1966 was signed on June 28, 1965, it included, under the heading, "Bureau of Cmtdoor Recreation--Land and Water Conservation," For expenses necessary to carry out the provisions of the Land and Water Conservation Fund Act of 1965 (78 Stat 897), including . . . acquisition of land or waters . . . (3) not to exceed $17,300,000 shall be available of the Forest Service. . . . Thus the money for Sylvania's acquisition was assured. In summary: The National Forest Reservation Com- mission40 gave the Forest Service permission to negotiate for Sylvania.41 Congress made Land and Water Conservation Fund money available for Sylvania's purchase on June 28, 1965.42 The GOgebic County Board of Supervisors approved 43 the purchase on June 15, 1966. The Fisher Estate's 40A federal body made up of the secretaries of the Army, Agriculture, and the Interior, two senators, and two representatives and which must approve certain Forest Service land purchases. 41Kizer, "Sylvania the Way It Is," p. 5. 42"[Tlthe land was acquired under [the authority of] the Weeks Act of 1911 . . .": Gandt v. Hardin (W.D. Mich. 1969) (Civil Docket NO. 1334) Transcript of—Proceed- 1ngs, Dec. 9-10, 1969, p. 254. 43"Only because the 1967 Appropriations Act [signed on May 31, 1966] no longer required local approval of Forest Service land acquisition projects," in the opinion Of Gogebic County Extension Director Andrew Bednar, personal interview, East Lansing, Mich., Oct. 28, 1970. u'l ell 65 interests were purchased for $4,315,000, transfer of title via quitclaim deed taking place on June 22, 1966. The Christiansen brothers' interests were purchased for $1,425,000, transfer of title via quitclaim deed taking place on June 24, 1966.44 Secretary of Agriculture Orville L. Freeman ar- ranged for a victory celebration, sending the following invitation, on July 29, 1966, to supporters of the Sylvania project: I want to invite you to attend a ceremony in Room 218, Administration Building, Department of Agricul— ture, on Thursday, August 4, at 3 p.m. At that time we will officially accept title to the Sylvania prop- erty which is a pristine tract of 18,000 acres of land and water in Michigan's Upper Peninsula. The Depart- ment of Agriculture recently completed negotiations for this outstanding property under the Land and Water Conservation Act which is administered by the Depart- ment of the Interior's Bureau of Outdoor Recreation. The purpose of holding a ceremony next Thursday is twofold. First, I want to officially express the Department's appreciation to the Members of Congress and to conservation leaders who played such an 44According to notations of the two quitclaim deeds, copies of which were obtained from the Forest Service. A Forest Service memorandum entitled "Schedule A, File Nos. 3-23-2617 and 3-23-2616, Tract No. 1662" indicates that a title insurance policy was prepared as of July 28, 1966 by Lawyers Title Insurance Corporation, with the title subject to certain easements, rights-of-way, and "minerals and mineral rights outstanding of record in third parties. . . ." In a letter to Secretary of Agri- culture Orville L. Freeman dated Aug. 2, 1966, the Attorney General of the United States advised the Secre— tary that, with regard to the Sylvania project, "the title evidence and accompanying data disclose valid title to be vested in the United States of America. . . ." 66 important part in making the acquisition of this out- standing property possible. In addition, we are so proud of this new addition to the Ottawa National Forest in Michigan that we want to take the opportunity to show a short color film which highlights the won- derful forest setting, its crystal clear lakes, the wildlife, and the recreational opportunities which will be develOped in the years to come. I hOpe it will be possible for you to be with us on August 4. . . . Sincerely, Orville L. Freeman45 Thinking of the local taxpayers back home in the "U.P." and distressed because neither of his special fed- eral-payments-in-lieu-of-taxes bills for Watersmeet Town— ship passed, Senator Philip A. Hart sought relief for these citizens from other quarters, as the following ex- cerpts from a widely circulated form letter from his office, dated August 8, 1966, indicate: Last week the Forest Service of the U. 8. Depart- ment of Agriculture completed the purchase of the Sylvania Tract in northern Michigan as a major addition to the Ottawa National Forest. . . . One of the most difficult aspects of the negotia- tions to acquire the land was the requirement that the local government consent to the purchase. Gogebic County, Michigan is the county with the highest unem- ployment and one of the most depressed economies in the state. The impact of the tax loss falls on the county all this year, and particularly on Watersmeet Township. There will be some compensating federal programs that will help ease this impact, but in the 45Letter from Secretary Freeman to James L. Rouman, Executive Director, Michigan United Conservation Clubs, Lansing, Mich., July 29, 1966. 67 next two or three years this tax loss comes quickly and with serious hardship. The compensating federal programs in and of themselves are not sufficient to ease this burden. In discussions with the County Board, I joined in agreeing that a special effort should be made to help raise a private fund that could be used to make pay- ments to the local governing units to compensate for the immediate impact of the tax loss over the next two or three years. This is an unusual situation, but I believe it is one which merits special effort, inas- much as with this pledge it became possible to purchase the tract without further complicating delays. It is my hope that your organization would be willing to make a one-time contribution to this effort. We are urging many diversified groups to contribute. The recently established tax-exempt Michigan Wild- life Foundation has agreed to act as the recipient of contributions and disburse the moneys to the local governments. Checks should be made payable to "Syl- vania Account" Michigan Wildlife Foundation, and should be mailed to P. O. Box 2235, Lansing, Michigan, 48911. . . . Your consideration of this request will be most warmly appreciated, and will contribute, I know, to fulfilling an obligation which exists not in law, but in fact to assist in a very difficult local problem in the next two or three years for these citizens of Watersmeet Township. . . . Philip A. Hart46 46How successful was this appeal to the general citizenry--particular1y to conservation groups--to help Watersmeet Township meet its obligations in the face of decreased real estate tax revenues? The Iron Mountain News, Iron Mountain, Mich., on March 30, 1970, provided the following report, in outlines under a three-column photograph: "TAX RELIEF?--Gerald Goodman, left, Region One vice-president of the Michigan United Conservation Clubs, is shown presenting Watersmeet township supervisor Frank Basso with the final checks from a trust fund which had been set up to give the township some relief for tax base lost through the acquisition of the Sylvania Tract by the U.S. Government. The 18,000-acre tract brought 68 Dedication Day The climax of the acquisition stage of the Sylvania project came on September 22, 1967--"Dedication Day"--when bus. Lyndon B. Johnson and Secretary of Agriculture Freeman "graciously paused within the Ottawa National Forest to 47 dedicate Sylvania Recreation Area." Also present for the ceremony on the north shore of Clark Lake were Senator non-taxable lands in the township to over 70 percent, Basso said, representing an annual loss of approximately $34,000. The trust fund was set up by organizations and individuals concerned of [sic] the plight of the township but failed to come anywhere near the loss suffered, bring- ing in only about $900. The Forest Service did make some concessions to the township by promising road improvements and other physical projects, Basso noted. The MUCC served as administrator for the short-lived trust fund, the money which will be used toward the construction of a tourist information booth at Watersmeet." For an up-to-date (January 25, 1971) set of fig- ures on payments that have been made to Gogebic County and watersmeet Township which could be considered financial compensation in connection with the acquisition of Syl- vania, see Appendix A. 47U.S., Department of Agriculture, Forest Service, Eastern Region, Contact Special: Sylvania (Milwaukee, Wis.: Forest Service, No. 2204,41967), p. 1. This eight- page house organ-type publication included reproductions of several photographs (including one of the First Lady reading the bronze Sylvania Recreation Area dedication plaque, captioned: "Monument to the spirit of the Forest Service") and a thank-you to the Forest Service employees of the region from Regional Forester James: "The ceremon— ies on this day raised the Sylvania Recreation Area and the Ottawa National Forest to a higher plateau of public recognition and respect. This encouraging public attitude stems from the initiative and the long hours put in by many of you . . . those who build paths for others to walk. . . ." Us. 69 Hart, Congressman Philip Ruppe,48 Forest Service Chief Eflward P. Cliff, former Ottawa Forest supervisor John fibrnham, the current supervisor at that time, Michael Kageorge,49 and others. In a brief article in The Living Wilderness maga- zine soon afterward, Mrs. Johnson described her enthusias- ‘tjc reaction to "the silence of Clark Lake" and to Sylvania :irmgeneral in lyrical terms.50 In a footnote to this airticle, the Wilderness Society editor, Michael Nadel, c>bserved= The First Lady may well be proud of her part in the dedication of the 18,000-acre Sylvania tract. . . . This scenic paradise should be protected against the chainsaw. Hopefully, recreational development will be thoughtfully discriminate, and make possible a day-use type wilderness which could eventually enter the National Wilderness Preservation System. 48Republican successor to Rep. Clevenger following 1:he 1966 election. 49Gogebic County Extension Director Andrew Bednar (describes Wernham as one who had a "very humane approach" iand who "felt the pulse of the county supervisors," while ‘terming his successor, Kageorge, "a company man who didn't (care about local interests." Personal interview, East JLansing, Mich., Oct. 28, 1970. By way of contrast, Prof. frhomas Mowbray (personal interview, Green Bay, Wis., July :21, 1970) describes Kageorge as "good; [he was] worried about the Whitefish Lake road." 50Mrs. Lyndon B. Johnson, "Sylvania Recreation Inca," The Living Wilderness, Vol. 32, No. 101 (Spring 1968), pp. 3-50 ~ 70 Forest Service Proposal Unopposed by Conservationists Despite some minimal evidence to the contrary, such as a series of letters from a Washington, D.C.-based staff member of The Wilderness Society to Michigan conser- ‘vationists indicating the Society's interest in encouraging tlm preservation of Sylvania's wildness,51 the record shows that the United States Forest Service and U.S. Eienator Philip A. Hart won the Sylvania-acquisition battle VVith little help52 and that during this critical period t:here was practically no publicly expressed opposition ifrom conservationists regarding the agency's widely adver- tzised tentative development and management scheme for the Eirea.53 Local economic and political considerations being 51Letters from M. Rupert Cutler, Assistant Execu- 1:ive Director, The Wilderness Society to James L. Rouman, IExecutive Director, Michigan United Conservation Clubs, f the area will be trails and portages.. General pub- .lic use will be limited to the periphery of the area vehere such use will have the least impact on the exist- ing environment. . . . Dr. Gandt sent a copy of Deputy Chief Nelson's letter to Senator Nelson on March 29, 1969, together with a covering letter to the Senator in which Dr. Gandt charged Deputy Chief Nelson with lying and negligent supervision: . . . Enclosed is my reply from the Department of Agriculture, signed by M. M. Nelson, Deputy Chief of the Forest Service. His false reply, and negligent suPervision of our natural heritage cannot go un- a“Tiswered. 1:. When Sylvania was put up for-sale, I was in cor- e Spondence with a private group which sought to ex- :égit this area. I thereupon supported the govern- EgtiEEEEEgt's purchase [emphasis suppliéd] based on the E act-ement flat the wilderness aspects would be care- Lat :l-ly evaluated and preserved.1 Mr. M. M. Nelson's \ ofD::. 1This statement places the date of the initiation Wilde ‘ Gandt's personal efforts to preserve Sylvania's Tnsi‘41t:;‘§less values as prior to the date of the area's ac- :1.on by the Forest Service. 128 statement that: "The Forest Service has never sug— gested that the area be managed for wilderness pur- poses . . ." is a lie. Research in newspaper librar- ies will prove otherwise. Questioning of some of the employees who have worked in the Sylvania Information Building would also prove this a lie. As a citizen of this country, I find less and less opportunity to live, even for a day, in a natural sur- rounding. It is my right to be free at times from transistor radios, portable TV's, Snowmobiles,.Motor- cycles and automobile exhaust fumes. Mr. M. M. Nelson's 30% Non-Wilderness Concept will criminally destroy Sylvania, for me and for my children. The Forest Service may feel free to apply its multiple use concepts to the thousands of available second growth areas under its jurisdiction. Even more regretful, is the basic lack of truth- .fulness in a government Department, a good start in Lindermining confidence in our government in general. {this is a very serious matter. Some time ago, a Michigan newspaper quoted a local Michigan Legislator as saying that, Sylvania should be citeveloped to bring in tourist dollars and to keep out 1:11e "bug watchers." Obviously the Forest Service has- prostituted itself to this type of mentality, thereby forfeiting its jurisdiction! I am bringing this to your attention. I don't know who else I can turn to for help. Senator Nelson Questions Chief Cliff Senator Nelson assured Dr. Gandt, on April 7, 1969 v - that: "I share your deep concern about this matter and am in direct contact with Edward Cliff, Chief of the [L 3“ JEFOrest Service, on what can be done about it." . SQl’lator Nelson had indeed been in direct contact with Chief Cliff regarding the management of Sylvania. He had quest; .. {Oned the chief closely on this subject during a 129 March 7, 1969 Senate Public Lands Subcommittee hearing on a bill to establish a wilderness area in Montana. The colloquy follows: Senator Nelson. Do the areas which the Wilderness Act requires the Forest Service to review for possible addition to the wilderness system include any areas east of the Mississippi River? We have no primitive areas east We have some wilderness, as you The biggest one is in There are Mr. Cliff. No. of the Mississippi. know, east of the Mississippi. Minnesota--the Boundary Waters Canoe Area. three others, one in New Hampshire and two in North Carolina, that are classified as wilderness. Senator Nelson. What I am getting at is that the wvilderness law does not require you to review any of jyour lands east of the Mississippi for further inclu- ssion in the wilderness system. It doesn't require you to do it, does it? Mr. Cliff. Not an absolute requirement. czcaurse, we are considering areas that are not in 1E>Jrimitive areas, and we expect that there will be a We will number of these that will be considered. review them, and when we do review them and make rec- ornmendations, we will do it in accordance with the procedures set out in the Wilderness Act. . . . Senator Nelson. You have a number of areas which 'EBJITGB within the eastern national forests, which you administer as wilderness areas, don't you? I think you call them pioneer zones, crest zones, backwoods management areas, and so on. These are administratively andled in that fashion, are they not? t2. Mr. Cliff. We have some areas that are adminis- 1.1::t‘ed along the lines that Mr. Rahm has been expressing life [with respect to the proposed Lincoln Back- We have one in :22 WQ Untry Wilderness Area in Montana]. 3 St Virginia that we call a back-country area. We 9% trait peOple to enter this area only on foot. 55L 3 However, we do permit other forest uses in such an ‘EEa which wouldn't be permitted under the Wilderness We have a scenic area classification, under which Z§p‘::=‘t:. Of ‘"'"‘Ea= . . J:>.EE= administer areas to protect their scenic and rec- \;;_§Ei'fiition values, but permitting some other types of ‘32s. 130 The regulations for scenic areas are not as strict as wilderness areas, but we are managing the land for the preservation of outstanding scenic and recreational values, where that is justified. Senator Nelson. Specifically, the 18,000-acre tract, Sylvania, which comes down to the borderline of the State of Wisconsin, is one. A good part of the tract represents one of the choice wilderness areas east of the Mississippi, which has never been cut, or touched in any way. I under- stand you are preparing a development plan, and that there is considerable controversy over it. Now, do you intend to review Sylvania for purposes of considering what part, or whether all 18,000 acres ought to be designated as part of the wilderness system? Mr. Cliff. We have made a very intensive study of 'the Sylvania tract and have developed a plan for it. The Sylvania tract is, of course, as you know, £3enator Nelson, bisected by roads in places. It has permanent buildings, rather substantial ones, on it. 3E1: isn't all, or couldn't all, qualify as wilderness. Senator Nelson. Just a moment. What substantial 1:»11ildings are you referring to, those old houses? Mr. Cliff. We have removed some of the old houses, but there is an old lodge there. Senator Nelson. If you leave it alone, it will fall down. <51 Mr. Cliff. It is quite substantial now, and we .1:;<:>Jnl't know what we will do with it. The point is that he area is substantially developed and has been for a l th time. 1:; Part of our management proposal for that area is (2"::’ keep a substantial part of it completely undevel- <:>]E;)”Eéd. We have already installed canoe access campsites €E3f1:“ a number of the lakes which are in use. People can .<:.‘EE=‘t: to them only by canoe or by boat. They consist gs=:':‘~JLy of a table, a cooking grill and a cleared-off bace for setting up a tent. 131 It is a primitive type-campsite, but we have a number of those in use already. Can you permit a campsite devel- Senator Nelson. oped with grills in the heart of that wilderness area without destroying its wilderness feature? Mr. Cliff. The Wilderness Act does not permit installation of permanent structures. There are places in Sylvania where we need permanent structures to take care of the heavy use that people are making and will make of these areas, in order to protect the areas themselves. Such structures will not impair the high quality of the area. But I think you know the issue at Senator Nelson. stake there is a visitor center, campsites, and so forth. Sylvania is really just a tiny jewel of 18,000 acres surrounded by two national forests with a total vvell over a million acres. [Wlhat is disturbing Ipeople concerned about that wilderness is that this .18,000 acres held in private hands from the very be- gyinning and never cut--everything around it was a cut- c>ver, the whole works, and burned--and here in the .t1eart of it is 18,000 acres, and you have the Ottawa :bJational Forest, of 8 or 900,000 acres abutting Syl- ‘xztania, and the Wisconsin side is the Nicolet National .I?<>rest with a half million acres. You are sitting there with over a million acres on 1ar11ich you could build campsites or anything you please; why in heaven's name should we put anything in that very delicate wilderness area, of which we have almost none east of the Mississippi? There isn't anything east of the Mississippi com- There are other wilderness Parable to this tract. JEIwEtt I know of comparable to this particular wilderness This tract has delicate glacial lakes and un- ‘t: When you have a million and a EEL \7e roads closer in, and do your developing, it seems ‘1:;<:> me, on the adjacent forestry lands. That is what bothers me about this whole thing. I I“islnve canoed it, and looked at it, and I can see how ‘<:>\a could destroy it very easily. 1::_ Mr. Cliff. We are certainly not going to destroy gaiflrlte beauty of the area, Senator. We realize our obli— isaftion. We have to take good care of it, and we cer- Q:i.nly intend to do it. . . . 133 Senator Nelson. One more question on Sylvania, so that I will know where we stand. What is the status, do you have a plan, and do you plan to implement it as of now? Mr. Cliff. Yes, sir; we do have a plan. Senator Nelson. I am sure you are aware that a number of the more thoughtful of our conservationists in the Midwest, and in my State, and those who know this wilderness, are very concerned about intrusions into it. Have you talked with them about it? Mr. Cliff. I haven't talked to them personally, Senator, but I have had correspondence with them. Senator Nelson. What is the status now? Have you got a plan on paper, and nothing has been done to im- Iplement it? Mr. Cliff. We have a plan on paper,.and we have implemented part of this plan over the last 3 years. We have put in canoe access camping spots on a Iaxzmber of the lakes. We built a major road into the :r1c3rth end of the Sylvania tract to the picnic area.. Ififee built a picnic area there. This is an area where 'tzllere was already a road. We replaced an old road taerth.an improved road that is fully landscaped. Senator Nelson. Are you talking about the re- Placement of that road that ran along the shore of Clark Lake, is it? _t:_ Mr. Cliff. I don't remember the name. We have <:>J:n down most of the structures that were on the prOperty. There are still some left. 3‘: We closed off some of the roads, and intend to “E=<3p them closed, and let them revert to hiking trails. 1:; There were quite a number of low-standard roads Qhrough this property which disqualified it, in our 1E;>:inion, for classification as wilderness. 1::_ The whole area certainly does not measure up to :l:1es those seeking wilderness status for Sylvania as j_ E: =53‘lzurbing element": "Mr. Chairman, in 1968 the Syl- IRecreation Area, in Gogebic County, experienced a 45 par < Year: Qmt increase in visitor day use over the preceding “9‘ "’ jumping the total to 44,300 visitor-days. Surveys L Q Qte a growth of about 30 per cent in business in the ‘ri. _ ._ 136 Dr. Gandt won a direct response from Secretary of Agriculture Clifford M. Hardin by sending the Secretary a copy of his letter to Senator Nelson in which he charged area due in great part to development of Sylvania. "The area is dependent upon further development of the area to make up for the loss of its tax base when the. federal government took ownership of Sylvania. The orig- inal development plan programmed $98,000 for fiscal year 1970. The proposed budget contains only $17,000. The additional $81,000 would provide two flush toilets at the beach, complete picnicking and beach facilities having a capacity of 500 people and construction of a station at the main entrance to the area. "Mr. Chairman, a disturbing element is showing up regarding the public role to be served now that Sylvania is part of the Ottawa National Forest in Michigan. It has been suggested that rather than develop Sylvania as a recreational area, it be included in the Wilderness Pres- ervation System. To do that would be to break faith with the peOple of Gogebic County. When we appropriated the funds for the Forest Service to purchase Sylvania, commitments were made to local units of government that the area would be devel— oped as a multiple use area to bolster the economy of Western Upper Michigan. ’ "It was on those grounds that the concerned parties agreed to establishing the recreation area. II To do otherwise now would be to create serious hardships on the peOple of the area. "In all good conscience, I cannot support any move- ment to include Sylvania in the Wilderness Preservation S¥Stem. I expect the Forest Service to support the com- Initunents made when it gain approval to purchase the tract. "In that same vein, any slowdown in the development plan for Sylvania also works extraordinary hardship on the people of the area. qt: For that reason I strongly support the budget re- c£3€383t for $232,500 to complete a visitor information CEEF11zer at Sylvania and urge and additional appropriation £381,000 to keep the development plan on schedule." Est; Senator Hart's current posture on Sylvania was IIfinned up in an Oct. 28, 1970 letter by the Senator to 137 pg. 14. Nelson with giving him a "false reply." The Secre- tary: on April 22, 1969, took polite exception to Dr. Gandt's charges: You recently sent me a copy of a March 29 letter you wrote Senator Gaylord Nelson about management of the Sylvania Area in the Ottawa National Forest, Nfichigan. You indicated that a recent letter you re- ceived from Mr. M. M. Nelson, Deputy Chief of the Forest Service, contained false information, and you branded Mr. Nelson's statement that the Forest Service did not suggest the area as wilderness as "a lie." I can fully appreciate your strong feelings for Sylvania and your desire that its values be protected. It is a unique area of lakeland and Old growth hard- 'wood forest. To provide for public use of this beautiful area and yet maintain its-resources and its charm requires most careful planning and skilled management . Since acquisition of this area by the Government was first proposed, there have been strong differences in viewpoint on how it should be managed. Some urged complete development so that the maximum number would be able to enjoy its special charm. Others wanted it to be closed to all use except by foot or canoe. Equally sincere and dedicated people held these oppos- ing opinions. During the time negotiations with the previous owners were underway, a tentative management policy ‘was developed by the Forest Service. A brochure out- liuiing this proposed policy was published in 1965. It formed a part of the basis on which the decision» to go ‘ JOhn E- Carroll of East Lansing, Mich.: "You will under—- stand that I have not particularly wanted to get involved $215113 Save Our Sylvania quarrel. I was the one who ob- pure: the Federal funds» with which the Sylvania» Tract was sensea-ied"the Forest'SerVice Plan made reasonably good ua ls w _ 0 me, the Michigan Conservation groups.and individ- reliedlth whom I work have not been upset by it, and I have gan Un _ On their judgment." These groups include the Michi- JLileed Conservation Clubs and the Mackinac Chapter of the Sierra Club. k 138 ahead with the purchase was formulated; by the Forest Service, by members of Congress, by the National Forest Reservation Commission, and by others. It-also was basic to the decision by the County Board of Sup- ervisors, without whose approval the transaction could not have been made. This brochure was also widely available to organizations and individuals interested in the area. A duplicated copy of the brochure is enclosed. In the section entitled "Opportunities Through Public: Development," you will note the type of development that was contemplated. In developing the plan of management, the Forest Service has been careful to keep all substantial devel- Opment on the outer edge of the area. If the manage- ment plan varies from the concept proposed at the time of acquisition, it is on the side of providing less public development, rather than more. While some roads are being improved, no additional area has been Inade accessible by car.' In fact, a number of roads have been closed to public use, one of which penetrated to the heart of the area. I am sure you will continue to find the naturalness you desire in most of the Sylvania. I hope you will continue to use this area as well as other portions of the National Forest System. . . . Development Moratorium Requested Dr. Gandt, in his May 9, 1969 response to the Secretary, specifically requested a moratorium on devel- Opment work in Sylvania pending review of the plan by an Outside group of ecologists and other "experts": . . I am pleased with the response and concern :15 the Department of Agriculture. It restores my ai th in our form of government. t 21 dalso wish to thank you for the publication en- cittzlLed "Sylvania" published before this tract was pur- Eifiieed in 1965 by the U.S. Government, and I am 139 grateful to Mr. James for sending me the publication entitled "Sylvania Recreation Area Management Plan" published in 1968. 4 My original charge was that the U.S. Government is not keeping its promise to preserve the wilderness as- pects of Sylvania. While indeed the term."wilderness" is not used in the 1965 booklet. This is only a matter of semantics. In the opening statement of this publi- cation it states "Sylvania is unique. There is no area like it nor will there be, giving in one compact area a vignette of virgin northwoods and pristine lakes." Here, Mr. Secretary, your department states that there will never be another area like Sylvania; The publication then goes on to show that the value before purchase was due to its unmanaged nature. The booklet states that in this-unmanaged area "trees are of all ages from veterans to seedlings." Yet in your booklet published December 1968 you speak of the neo- essity of management. I could continue point by point illustrating this antithesis between your publication of 1965 and 1968. The booklet of 1965 closes with a statement "To enjoy and not to destroy, to see and to appreciate, to use and not to abuse, to have now and in the future as part of our American heritage: This is the opportunity and challenge of Sylvania." Your 1968 publication makes a mockery of this statement. In view of what is being done to Sylvania today the spirit of the 1965 publication is a lie. Therefore I maintain my charge that the U.S. Government deceived its citizens. Furthermore what's additionally appalling is the spirit of the 1930's which is apparent in the publica- tion of 1968. In the 1930's development of resources was necessary and there was little threat of overpopu- laizion and mass pollution. Resources were here to be developed. You are aware of the population of the Potential of Sylvania since your state in your. 1965 PPkfllication "Sylvania is 355 miles from Chicago, 559 mfles from Detroit, 265 miles from Milwaukee,_249 "LI-lee from Madison, and 160 miles from Duluth. It is Within a day's drive for many people." Yet the .___________‘ April 4Sent by Regional Forester James to Dr. Gandt on (avg-130 . 1969. See Gandt v. Hardin (W.D. Mich. 1969) 9-11) I3I£>£Nment moratorium and the appointment of a review commit— tuae: . . . My tour last week was stimulating, to the extent of shocking. Sylvania is in metamorphosis from pristine wilderness to another trampled tract of common forestland. Perhaps, in Washington, you are not aware of the small and delicate nature of this tract. The entire area can be crossed from east to west, and then from north to south by foot easily, in one day! And this is our single largest publicly owned tract east of the Mississippi which we have left to preserve in a wil- derness quality. In spite of the susceptability of this tract to overuse, the Forest Service is alluring the public in hordes [sic] by providing a free-way type road (wide shoulders) cutting its way into the northern portion 146 of Sylvania, as though hiking and snowshoeing do not exist. This highway leads to boat launching ramps on Clark and Crooked lakes, the two largest lakes on the tract. These lakes, in turn, extend well into the interior of Sylvania even penetrating to its heart. The use of motors is permitted on Crooked Lake even though the official Forest Service Management Plan states on page 6: "Such use will not be encouraged . . ." Do you think building a launching ramp, provid- ing a huge parking lot, and connecting this with a wide highway.carries out the Management Plan? I do not! And it does not. How many other aspects of the Management Plan will be twisted to best serve exploi- tation of Sylvania? The Forest Service says these landings are necessary because of local commitments. If the Forest Service cannot persevere in the face of local pressures to protect that which belongs to all' Americans, it should forfeit its guardianship. This is an example of a term I have heard in many circles lately: "Mob rule in America." Those who do not have the intellectual means of recognizing beauty (the local pressures-mostly economic) should not be allowed to destroy it. . This highway, now almost completed, will also lead to a parking lot so that boats can be brought into Long and Snap Jack Lakes. During the tour, we parked a quarter mile from the lake and walked, past a Pepsi can, a Fritos bag and a Dutch Master box, to Snap Jack. When I looked at this-clear 20 or 30 acre lake, I could not imagine building a road for access! Even infrequent hikers could overuse such a lake. However disappointed with the above, my heart really sank when I was escorted to the intensive use area on the north end of Clark Lake. On a fine over- look there is arising, in a style I call Contemporary Coney Island, a huge bathhouse, concession stand, and administration building. Down the hill from this building, visible through the White Birch, is a sand beach. On June 21, not a single person was swimming or using this beach simply because it would be unimagi- nable in such cold weather. There were a few canoes zig-zagging near the launching area, and another canoe. chasing a Loon, but no bathers. Yet for half a dozen or less weekends of the year this part of Sylvania is being sacrificed (even the Forest Service admits this). The roots of the White Birch will not tolorate crowds of people, and will die. There are numerous adjacent areas in the Ottawa Forest to provide this type of. 147 recreation, and it is particularly painful to know that my taxes are paying for this blunder. This is an Edsel, Mr. Secretary, and every cent further sunk into this area is wasted. At this point I could no longer be shocked when I was told that at the gateway of this highway-motorboat- snowmobile system to the heart of Sylvania, on U.S.2, private interests are setting up a canoe and camping supply rental business to bring in some more highway trade.. This business would have little patronage if customers had to walk into Sylvania. I am sure you can see that Sylvania is in jeopardy. I have written you previously asking that you halt the Management Plan in effect in Sylvania. You are not obligated to do what I wish, but you have an obli- gation to give explanations and answer questions of the constituency which you serve. As far as I can determine, you have the ultimate responsibility in Sylvania, and I am asking you why you are allowing it to be destroyed? You were not in office during acqui- sition, so you have the necessary freedom to take the steps necessary to preserve this tract. I had given you the courtesy of withholding further comment until I finished my tour. I gave your Forest Service an opportunity to be heard. You have, however," placed me in a similar bargaining position that the North Vietnamese have placed Ambassador Lodge in Paris, and that is, while we talk the destruction continues. Therefore, in a spirit of fairness, I am asking you to stop the present development of Sylvania until the Management Plan can be reviewed. In order to review this plan impartially, I ask you to call on some of the distinguished talent from our Universities. There should be an ecologist on this Board, as well as representatives of several of the disciplines in biology. There could be a social anthropologist to help us understand the value of wil- derness in our society.- Perhaps a poet could be included. Secondly, I am asking you to recommend to the President, that his budget includes an appropriation to purchase Sylvania, and that the original purchase sum, with interest, be repaid to the Land and Water Conservation Fund. This would remove a technical ob- stacle to the full wilderness preservation of Sylvania. I am sure that the intent of P.L. 88—578 was not to destroy a tiny wilderness area. 148 If you call such a moratorium, I will cooperate to the best of my ability with your Department in formu— lating a new plan (I do have an alternate plan, and I know many other alternate plans may exist, none of which mean anything while the destruction continues). Since Sylvania does not have long to live, at the present pace of development, and in an attempt to equalize my bargaining position, I am going to carry. on with my original plan of opposition, which I had suspended out of courtesy. Ambassador Lodge is not as fortunate as I! I have commissioned an artist to depict Smokey-the Bear as a vandal, and I shall use this symbol in newspapers and magazines to draw at- tention to my campaign. I don't know why American youth should be spoon fed the altruistic symbol of the Forest Service which in truth is destroying part of our American Heritage. For a time after this June 28 pronouncement, Dr. C3élr1dt felt that the Washington office of the Forest Service 511161 the Secretary's office had broken off communications with him. All he received from these offices until August ‘3; 1969, was an urgent "registered--return receipt" letter from the Director of the Cooperative Forest Fire-Prevention (launpaign, dated July 11, warning Dr. Gandt that: By agreement with the Attorney General's Office, we move fast to inform apparent violators about the provisions of the law [protecting Smokey Bear from unauthorized use] and seek their cooperation in abat- ing any mis-use of Smokey Bear without the cost and embarrassment of criminal action. If we don't do any good, we report to the Department of Justice and they take over.-. .‘. A month after mailing his June 28 letter, not. h"=1Ving received a response from the Secretary, Dr. Gandt Wrote to Senators Nelson and Proxmire and to his Congress- Inallp John W. Byrnes, asking them if they could intercede 149 at the Secretary's office on his behalf and make an ap- pointment for him to see Secretary Hardin personally. Finally, on August 8, 1969, a three-page letter responding to Dr. Gandt's June 28 message was mailed to <3saricit by M. M. Nelson, Forest Service Deputy Chief. In something of a classic re-statement of the agency's Syl— ‘TEiIIJia management theme, Deputy Chief Nelson tried once Ei§léagin to explain what was happening in the Sylvania Rec- reation Area, and why: Secretary of Agriculture Clifford M. Hardin has asked us to thank you for your June 28 letter. We appreciate hearing your views on the development and use of the Sylvania Recreation Area. First of all, let me say that we here in Washington are very much aware of the outstanding natural features of Sylvania, and share your concern in preserving these unique characteristics for future generations. I have personally visited Sylvania on several occa- sions, as have other members of my staff. We feel that the Sylvania Recreation Area Manage- ment plan, published in December of 1968, incorporates a number of safeguards designed for the protection of all resources within the area. This plan also pro— vides for adequate development to allow for public enjoyment of Sylvania without jeopardizing its unique features. We recognize that it will probably be nec- essary in the future to limit the number of people who may use this area, particularly the interior. You will notice in_reviewing the plan that most of the proposed developments are located on the perimeter of Sylvania. An exception to this is the few water access camping sites, which have been established on nine of the Sylvania lakes. These sites have been carefully selected and established away from the shore- line, resulting in a minimum of impact on the area. The conservative capacity of these sites has been carefully restricted and will be rigidly enforced. 150 To insure the maintenance of water quality within Sylvania, we have established a monitoring program, aimed at heading off potential pollution problems. Water samples will be taken and analyzed at periodic intervals. We have also established speical regula- tions designed to maintain the high quality fishing now enjoyed in most of the Sylvania lakes. Many of the facilities and improvements such as buildings and roads, which were constructed by the former owners, are being removed and the sites restored to a natural condition. You probably saw examples of this during your recent visit to the area. Under the approved plan of management, the Sylvania visitor in a few years will discern less of affects of man on the landscape than was the case before title to the tract was invested in the United States. Perhaps it would be helpful to provide you with some of the background leading to the development of the Sylvania Management Plan. Sylvania was acquired in July 1966 after more than 3 years of negotiations with the former owners. The National Forest Reservation Commission, which reviews and approves the acquisition of all lands for National Forest purposes, would not agree to this purchase without the consent of the Gogebic County Board of Supervisors. Since the County was faced with a sig- nificant loss in annual tax revenue as the result of Federal ownership, the Board was reluctant to give this approval without some assurance that the loss in tax base would be replaced by revenue from other sources. When approval for the acquisition was granted by the Board in June of 1966, it was with the understand— ing that Sylvania would be managed under the principles of multiple use and sustained yield. This was also the understanding of other groups, individuals, and units of Government which supported the acquisition of Sylvania. Honorable commitments were made which we intend to keep. The management plan itself was developed after more than 2 years of intensive field surveys and con- sultation with leaders in the field of conservation, education, industry, and government. In September 1968, the preliminary plan was reviewed by an ad hoc committee, assembled to make recommendations regarding management decisions for Sylvania. This committee . ___— -n- ~A‘- -—_~"-.-.¢.‘a - - 151 included representatives of the University of Michigan, Michigan State University, the Sierra Club, the Na- tional Campers and Hikers Association, the Michigan Department of Natural Resources, and others.~ The final plan included many of the recommendations of the ad hoc committee, as well as those of other interested groups and individuals. In your letter, you have indicated an interest in having Sylvania administered as a wilderness area under the provisions of the Wilderness Act of 1964. This, of course, is impossible, not only because of the preacquisition commitments which preclude it, but also because of the overriding fact that much of the area with its nonconforming roads, buildings, and related facilities Simply does not qualify for wilder- ness consideration under the criteria for wilderness established in the Act.7 The new county road, to which you make reference in your letter, will not only serve visitors to Syl— vania but also to the many established resorts and private homes on the Thousand Island chain of lakes to the west. This road replaces old County Road No. 535, which was narrow and crooked. It should be noted that the new road has been relocated to the extreme northern perimeter of Sylvania, with portions of the old road slated for obliteration. 7Sec. 2 (c) of the Wilderness Act, P.L. 88-577: "1k wilderness, in contrast with those areas where man and Ynis own works dominate the landscape, is hereby recognized as - an. area where theearth and its community of life are Ixntrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined tn: mean.in this Act an area of undeveloped Federal land retaining its primeval character and influence, without Shermanent improvements or human habitation, which is pro- tected and managed so as to preserve its natural conditions. and which (1) generally appears to have been affected Irrimarily by the forces of nature, with the imprint of Inan's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined tYpe of recreation; (3) has at least five thousand acres SMf—land or is of sufficient size as to make practicable lts preservation and use in an unimpaired condition; and (4) :may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value." 152 The new boat launching area on Crooked Lake re- places a very substandard and unsafe facility which has been in existence for a number of years.' Likewise, the boat launch area on Clark Lake provides access to this lake without making it necessary for the visitor to carry equipment across the picnic area to a cumber- some launching point on the swimming beach. Both of: these facilities are intended to serve legitimate canoe and boat users on the Sylvania Lakes. The day use area on the north end of Clark Lake offers the only real opportunity for picnicking and swimming in Sylvania. This development, located on the northern perimeter of Sylvania, will result in minimal disturbance to those who seek the solitude-and natural beauty of the interior. The camping supply outfitters, located on the north side of U.S. Route 2, will be established on private lands by~a group of local businessmen. This particular enterprise will serve not only visitors to Sylvania, but also to the many other outdoor recrea- tion areas in and around Watersmeet.. It is our feeling that the approved plan of man- agement for Sylvania makes it clear that most of the area will be so protected and managed that those visi- tors who want to do so will find opportunities for a truly primitive recreation experience in an undisturbed natural setting. In similar letters sent to Senators Nelson and Proxmire and Congressman Byrnes on August 28, 1969, Dr. Gandt described M. M. Nelson's August 8 response as con- Sisting of "irrelevant detail and unacceptable axiomatic generalities'but . . . [making] no reference to my request for a moratorium." Further ,. In the above letter M. M. Nelson writes: "Honor- able commitments were made which we intend to keep." On June 21, 1969, I had requested a copy.of these ubiquitous commitments from Ralph Kizer, Ottawa Forest Supervisor, but I have not received a copy.. No one in our group [emphasis supplied] has been able to obtain 153 a copy of these commitments. Yet these commitments' are repeatedly referred to by the Forest Service as an obstacle in stopping the exploitation of Sylvania! It seems unlikely to me that a Department of the U.S. Government_would base important policy on un- written secret agreements. Perhaps you would be able to obtain a c0py of these commitments for me. In addition, your continued effort to obtain an answer from Secretary Hardin would be appreciated. (I) CHAPTER VIII SYLVANIA: SOSAC IS ORGANIZED President Nixon's Help Sought With his August 28, 1969 letters to Senators Eblson and Proxmire and Congressman Byrnes, Dr. Gandt had begun to use a letterhead imprinted as follows: "SOSAC/ Save Our Sylvania ACTION Committee/961 West Mason Street, Green Bay, Wis. 54303/Phone (414) 432-7544." Officers listed on the letterhead were: Dr. Jerry Gandt, Green Bay, Wisconsin, Chairman; Robert Estabrook, Marquette, Michigan, Co-Chairman, Michigan Section; E. F. Cusick, Jr., Birmingham, Alabama, Co-Chairman, Eastern United States; Dr. Robert Matlack, Santa Cruz, California, Chairman, Western United States; Mrs. Lois Olson, Green Bay, Wisconsin, Executive Secretary; Miss Judy Polich, Madison, Wisconsin, Vice Chairman, Student Information. A carbon c0py of the August 28 letter to Congress- "Eul Byrnes was sent to "Attorney Richard Steinbrinck, SOSAC Legal Counselor, 220 N. Madison, Green Bay, Wis." Organized by Dr. Gandt in July of 1969,1 SOSAC's first official public act was to send a telegram to k N léindt V- Hardgg (w.D. Mich. 1969) (Civil Docket po'lg-334) Transcrijt of Proceedings, Dec. 9-10, 1969, 154 155 President Richard M. Nixon. SOSAC urged the President to take action to halt further development of the Sylvania Recreation Area. The telegram was sent, and a statement describing the telegram was released to the press, on August 17, 1969. The text of the telegram to the President~ follows: I am sending this urgent telegram to you in regard to your concept of the silent majority. Today I re-inspected the Sylvania Wilderness Tract of the Ottawa [sic] National Forest in Michigan, and the destruction of this area by the Forest Service is in full progress. Since February, before the destruction was under- way, I have attempted to establish a communication with Secretary of Agriculture Clifford H. Hardin, in regard to Sylvania, without success. I have asked only that a moritorium be called on the Management Plan of Sylvania until it could be reviewed by a board of distinguished men drawn from our Universities. I am not advocating any plan of my own to Secretary Hardin, I am only asking for a reas- onable review. I asked Secretary Hardin to establish a review board perhaps consisting of an ecologist, a social anthropologist, representatives of certain disciplines in biology, and a poet. For this board I am suggesting distinguished, knowledgeable, and sensi- tive people of the caliber of: Rene Dubos of Rocke- feller University, Lional Walford of Fish and Wildlife Service, Garrett Hardin of American Museum of Natural History, and Paul Sears of Yale. I have received no answer to these requests. I liave written Representative John Byrnes, Senator- VVilliam Proxmire, and Senator Gaylord Nelson who have aissured me I would receive an answer yet Secretary Iiardin remains as silent as Sylvania was before the IBulldozers arrived. . If a citizen of our country cannot establish a dialogue with his government officials, then I am 156 concerned that your "silent majority" will soon erode into a "silent minority." I ask your urgent support to arrive at a reasonable solution to the problem of Sylvania. The press release, issued by Owen Phelps, "Direct- or, SOSAC Public Information, 314 S. 6th Street,.West DePere, Wisconsin," described the contents of the telegram and then continued: "I have never been involved in any action of this kind before," Dr. Gandt has said, referring to his committee's efforts to save Sylvania. "But after repeatedly being ignored by the Department of Agri- culture, I feel we must act." A spokesman for SOSAC also indicated that the re- sponse to the committee's campaign is "overwhelming." "We have received more letters than we are really prepared to handle and without exception they are sympathetic to our cause. We expect there will soon be a deluge of mail from upset, concerned citizens." SOSAC's telegram and follow-up letters to President Nixon were answered by none other than Forest Service Deputy Chief M. M. Nelson. His brief September 11, 1969 acknowledgment said, in effect, that SOSAC's complaints to the President had been sent back down the line to the Regional Forester and the Forest Supervisor: President Nixon has asked us to respond to your letters of August 26 and August 29 which followup your telegram of August 17. Since we sent our letter of September 4, we learned that you wrote Regional Forester James at Milwaukee reporting on two trips you made into Sylvania. Mr. James tells us that he will contact you after he re- ceives a response to your report from Ralph Kizer, Supervisor of the Ottawa National Forest. We also learned that Mr. Kizer visited you in Green Bay Sep- tember 8. 157 We hope you find Mr. James.and Mr. Kizer to be helpful to you in interpreting how-and why Sylvania came into the Ottawa National Forest and the role to which it is committed. SOSAC had tried to get the attention of the top man in the Executive Branch and had failed. As far as citizen input regarding Sylvania was concerned, all roads led to the desk of M. M. Nelson. To Jerry Gandt, "admin- istrative remedies" in this case must have seemed non— existent. SOSAC Charges "Negligent Enforcement" While waiting hopefully for President Nixon's response to their telegram, the SOSAC'ers were not in- active; on August 17 and again on August 23 teams of SOSAC members toured Sylvania to record, verbally and photo- graphically, what they considered to be infractions of, and inappropriate implementations of, the management plan. Dr. Gandt, on August 29, 1969, wrote to Regional Forester James with this detailed account of their discoveries: On August 17 Mr. Owen-Phelps, Save Our Sylvania* Action Committee (SOSAC) director of Public Informa- tion, Mr. Dave Melin, and Mr. James Panucci, all from the Green Bay area, and myself re-inspected Muskrat [campground] and here is a report on its present con- dition: The boat landing is outstanding when viewed from the lake because the Forest Service has installed a dock consisting of a huge virgin pine with small cedar logs wired to it. Each scar where the branches were cut stick out like ulcers. Page 25 of the "Man- agement Plan" signed by you.states: "Boat Landings: natural usually but rocks or small logs may be placed parallel with the shore where needed to prevent 158 erosion and for safety." On June 21 Dr. Selke, age 84 and infirm, was able to step ashore safely, and I hardly call a log over two feet in diameter and 50 or 60 feet long a small log. At the shoreline we found a coat hanger hanging inia tree, two trees with initials boldly carved, a beer can, and a recently felled dead tree located about 50 feet from shore (On page 6 of the Management Plan, signed by you it states: "(only) dead and down material located at least 200 feet from the shoreline may be cut'). In the preliminary dis- cussion at Watersmeet June 21 I pointed out that such rules are unenforceable but the Foresters insisted that they would be enforced. On June 21, standing on the banks of Loon Lake, I Specifically asked Marsh Leflin [sic] if he had sufficient authority to enforce the rules at Sylvania or would he be required to notify other law enforcement officials. Mr. Leflin replied that he has full authority to enforce the rules. On August 17 our party also found that at one of the campsites in Muskrat the campers had used the tent pad outline forms for firewood, and we noted the gen- eral destruction and erosion. And saddest of all, the eagle's nest is gone! Before we completed our inspec- tion we also saw two parties using portaging wheels for their canoes. On June 21 I was assured by your Foresters that portaging wheels were absolutely for- bidden because of the fragile Nature of the portaging trails. On August 23 my wife and myself inspected Sylvania and photographed numerous examples of debris and over- turned garbage. At Whitefish Lake we discovered two campers who had been there since the previous day with their tent pitched on a point approximately 100 yards north of the west portage. This is not a designated campsite. The tent was 18 feet from the water's edge, the bank was broken form their activity, cans and debris were scattered around the camp, blankets were hanging at the water's edge, and the entire camp was visible form the lake. We brought the rules of Syl- vania to their attention and these two men merely laughed. I reported this violation to the Information A-frame at about 12:30 p.m. The same day at Helen Lake, on the now worn access trail, we noticed a tall white birch was stripped of its bark. Reminiscent of midtown New York on the hottest day of the year, the smell of hot oil from the new access road drifted over the area. 159 Our committee has no intention of allowing the Forest Service to continue its destruction of Sylvania. Since the Secretary of Agriculture Clifford Hardin has not responded to our call for a moratorium, we have appealed to President Nixon. While we are waiting for the President's decision we expect the meager safe- guards of the present Management Plan to be vigorously enforced. We charge that the Forest Service is negligent in its enforcement and in its adherence to the present Management Plan. We are requesting you, as Regional Forester, to inform us of what you will do to insure enforcement of the Management Plan and what steps you will take to repair the damage resulting from Forest Service violations of this plan. 2One month later, on Sept. 29, Regional Forester James responded to Dr. Gandt's observations and questions with this letter: ". . . The Muskrat water access camp- site has been closed to camping since July 1969 to avoid disturbance of the nearby bald eagle nest. This nest, which is difficult to see from the water, is still in place and is active. "After inspecting the boat landing at the Muskrat site, Supervisor Kizer concluded that his crews were overly ambitious in placing a log of such size at the area. How— ever, this was the result of a sincere effort to prevent erosion rather than a violation of the development guide- lines. We believe that subsequent weathering will make the landing less obtrusive. "We do not intend to condone littering, vandalism, and the use of undesignated sites for camping in the Syl- vania Area. Follow-up action was taken on the camping violation which you reported on August 23 and the camp was removed to a designated site that evening. We do appre- ciate your report. It is only through the interest and cooperation of dedicated users that we will ever be able to effectively enforce regulations at the area. Despite all precautions we have taken, at least eight cases of. camping at undesignated sites have occurred during the past two years. "Unfortunately, many users of our forest areas do not share the sense of responsibility that you feel for» the out-of-doors. Violations continue to occur in spite of sincere attempts to prevent them. We are pleased with the performance of our crews on the ground. Even so, we 160 Marsh Lake Timber Sale Advertised The next development to meet with SOSAC's dis- favor--the first of two specific actions by the Forest Service which lead to the lawsuit3--was the advertising of the first timber sale in Sylvania. Dr. Prentice of Ash- land, Wisconsin, writing to Paul Romig of the Wisconsin Natural Resources Council, on June 6, 1969, saw the "Marsh Lake Timber Sale" in this light: will review all of the aspects of the job which must be done and intensify our efforts at enforcing regulations. However, we are certain that you appreciate that our people use the same mode of transportation as the visitors to the area.’ This involves considerable expenditures of time and effort in covering the entire 23,000 acres in Sylvania. It is obvious that violations will continue to occur from time to time. To staff and patrol the area to the intensity required to prevent any infractions of the, rules would result in degradation of the very experience the users are seeking. We feel that this cannot be per- mitted to occur. With the completion of the new entrance building and road, we are hOpeful that more valuable and far-reaching contacts may be made with visitors who are entering the area. "We agree that recent construction activities in Sylvania have resulted in some disagreeable sights, odors, and sounds. However, there is no practical way to avoid these temporary nuisances since the use season and con- struction season are concurrent in this latitude. Fortu- nately, these will not be of a continuing nature. "Once again, we want you to know that we appre- ciate your interest in, and your comments on, management of the Sylvania Area. It is apparent that if we had more interested and enlightened visitors to the area, manage- ment would be much easier. . . ." 3The second action was the letting of a construc- tion contract for the "Road to Whitefish Lake." 161 . . And now the Forest Service has advertised a timber sale of 500, 000 board feet in the southeast corner of the tract. This is in an area where they would ultimately like to put a road to Big Bateau Lake, in spite of their denial of this in their devel- opment plan, thus giving them road access to a lake on which, by a legal quirk, motor boats are allowed. Thus more multiple use in a virgin area surrounded by four million acres of multiple use! It becomes increasingly clear that in the manage- ment of this lone wilderness gem in the region, the Forest Service never had any intention other than to make it bear the brunt of their multiple use policy. The preparation and publishing of a management plan, the calling of a citizens advisory committee meeting, the many public relations gambits were all an elabor- ate (and expensive) facade behind which the Forest Service pursued their willful way to the desecration of the only available real wilderness in Wisconsin and upper Michigan. It is distressing not only to see the loss of the wilderness quality of the Sylvania Tract, but to see the total disregard for anything but the mindless pursuit of a patently bad management plan on the part of the Forest Service!! The Forest Service, in a "fact sheet" dated July 1, 1969, countered by explaining that the Marsh Lake sale would "facilitate the maintenance of the large tree environment": Control will be exercised to minimize the impact on the environment. Special logging restrictions in- clude lopping slash, seeding temporary roads. No permanent roads will be constructed. This timber sale will be administered in accordance with the approved objectives of the management plan for Sylvania which are to maintain the scenic environ- ment. Timber management will facilitate the mainten- ance of the large tree environment by a vigorous forest of all age classes. The acquisition of the Sylvania Tract and the develOpment of a management plan for this area involved 162 the cooperation and support of many Federal, State, County and private organizations. The U.S. Forest Service was asked by members of the Michigan Congres- sional Delegation to study possible acquisition of the Tract. The Michigan Conservation Commission resolved that acquisition of Sylvania by the Forest Service: would best serve the public interest. Governor Romney. also supported this proposition. Further encourage- ment for public acquisition came in formal resolutions from the Watersmeet Township Planning Commission, the Watersmeet Township Board, the Gogebic County Board of Supervisors. Local approval was conditioned, however, on equitable provisions to offset the immediate re- duction in local taxes because of the property being taken off the tax roles by Government ownership. Several groups studied Sylvania for appraisal purposes. Dr. Hugh Davis of the Forest Service, sta- tioned at Ann Arbor, headed up early research studies of the Tract's potential. The University of Michigan's, School of Natural Resources, appointed one of their staff, Dr. Kenneth Davis, to edit a popular brochure on Sylvania which gained wide support for acquisition. On June 15, 1966, the Gogebic County Board of Super- visors voted unanimously for Forest Service acquisition of Sylvania, despite lack of formal provisions for deficit financing in lieu of tax loss. The Forest Service assured the Gogebic County Board that provi- sions would be made in the planning for Sylvania's development, to encourage the types of private enter— prise which, while not infringing on the pristine qualities of the area, would be profitable,tax paying industries. The Forest Service agreed to build a major Visitor Information Center at Watersmeet. The Sylvania Management Plan was developed in con- sultation with groups and individuals who had a knowl- edge of, and a keen interest in, Sylvania. When a preliminary draft of the Management Plan was developed, it was discussed Openly and critically at an Ad HOC‘ Meeting called for that purpose. Attending this meet- ing were individuals representing many diverse groups. Their views were solicited and given-careful consid- eration in the final Management Plan that now serves as a basis of operation for administering the Sylvania Recreation'Area. While the timber sale "fact sheet" was in fact principally a defense of the Sylvania management plan, a 163 letter sent by Forest Service Chief Ed Cliff to Senator Gaylord Nelson on June 19, 1969 at Senator Nelson's re- quest--and forwarded by the Senator to SOSAC--did contain in detail the agency's rationale for the Marsh Lake Timber Sale: ,. . A timber sale is planned and has been adver— tised for 760 cords of pulpwood and 162 thousand board feet of sawtimber on 127 acres in the southeast corner, of the Sylvania tract. Bids are to be opened today, June 19. The proposed sale is in accordance with the Management Plan for the area, a copy of which you re- ceived in March 1969. As we have pointed out before, it is in accord also with commitments made concerning use, development, and management of the tract between the Forest Service and Township and County officials and State and National legislators for the State of Michigan prior to Forest Service acquisition of the tract. Most important, the sale involves timber to be cut for salvage and sanitation purposes--to improve the vigor and appearance of the timber stand, to salvage overmature and defective trees, and to remove trees that because of their size and condition constitute a potential hazard to the users of the area, all of which will enhance the aesthetic quality of the timber stand and the area. This is a heavy stand of timber with a basal area of 127 square feet per acre. Only 30 square feet of the basal area will be removed, leaving 97 square feet per acre mostly in large saw- timber._ Another benefit from the sale will be to the deer herd there. TOps will be lopped providing a supple- mental source of browse during the critical winter season. No permanent roads are to be constructed to harvest the timber in the sale. Access to the timber will be from a permanent road outside the tract along an old woods road which will be improved for temporary use in removing the timber. Only winter travel will be per- mitted--the timber will be cut, skidded, and hauled during the winter when snow is on the ground. Skidding will be short logs only. Thus, disturbance of the site will be held to a minimum. . . . '164 Regional Forester George James informed some key. Michigan conservationists of the impending Sylvania timber sale prior to general public announcement of the sale.- Those with whom he visited personally to explain this im— plementation of the timber management phase of the Sylvania management plan included Miss Genevieve Gillette of Ann Arbor, President of the Michigan Parks Association, and Dr. Ross Tocher, Professor of Outdoor Recreation, School of Natural Resources, University of Michigan, Ann Arbor. Both Miss Gillette and Dr. Tocher indicated at this time their approval of wintertime over-the-snow selective logg- ing on the periphery of Sylvania, as proposed in the Marsh Ieke timber sale.4 The Kimberly Clark Corporation of Marenisco, Michigan was the successful bidder on the Marsh Lake sale. The logging, under the terms of Timber Sale Contract No. 07-966, dated October 9, 1969, was scheduled to be done over two winters: between December 1, 1969 and March 15, 1970 and between December 1, 1970 and March 31, 1971. Position Papers Issued by Both Sides The SOSAC-Forest Service conflict, as of the first week of September, 1969, had reached the stage where both 4Miss‘Genevieve Gillette, private interview, Ann Arbor, Mich., Oct. 19, 1970. 165 parties were resorting to position papers to attempt to clarify the issues for confused observers. On September 6, SOSAC issued a so-called "White Paper on Sylvania" containing the following charges: In 1968, M. W. Kageorge, then the Ottowa [sic] Forest Supervisor, and George S. James, Regional Forest Supervisor [sic], co-signed the present man— agement plan. According to this plan, the Forest. Service anticipates, and is providing facilities for, 800,000 visitors annually5 to this 29 mile square area, which is only two-thirds the size of the city of Green Bay, and can be walked, both its length and its breadth, easily in one day. Following this plan, the Forest Service is constructing wide roads to the two largest lakes on the tract, Clark and Crooked, and whose southern tips lie right in the very center of Sylvania. A visitor will then be able to launch his motor yacht and within minutes power and stink his way to the heart of this virgin forest. If it is winter, a snowmobile can as readily and as noisily penitrate [sic] the interior of Sylvania. In the face of this, the Forest Service maintains that access is being provided only to the periphery of Sylvania, when in fact The Forest Service has established motorized access, taking only minutes, to the heart. Sitting on both sides of the fence, the Forest Service states on page 6 of their management plan: "Motor-driven craft may be operated . . . on the following lake(s) . . .erooked ... . Such use will not be encouraged . . .", but they have built a concrete ramp and a huge parking lot on Crooked Lake. On the north end of Clark Lake, a building has been erected, which, according to a SOSAC architectural consultant who is preparing a formal statement, is unesthetic in wilderness. It contains glassed offices, aluminum concession windows flanked by bathroom-like fixtures, notched beams resembling suburbon pOp art, a bathhouse, usable less than 8 weeks per year, and related facilities. This is the intensive use area of 5Figure apparently based on 1964 study, not 1968 management plan which does not stipulate an annual visi- tation goal. 166 Sylvania, which is far from the periphery as stated by the Forest Service, since this area serves Long, Helen, Snapjack and Clark Lakes. Another huge parking lot and boat ramp on Clark will boats of all types without motors, even sailboats to easily penitrate [sic] the interior. Taxpayers are supplying $785,000.00 for this area. $100,000.00 has been allocated for development of wilderness campsites throughout Sylvania. . . . Logging Operations are scheduled for the future. On May 21, 1967, the Milwaukee Journal quoted co- signer Kageorge as follows: "What we are trying to do is determine exactly what we have within the tract. It is a big job, but it has to be done if we are to obtain our ultimate goal: To make the tract available as a recreation area to a maximum number of people WHILE RETAINING ITS BASIC POSTURE AS A VIRGIN WILDER- NESS". SOSAC believes that the American pe0ple have been betrayed by the Forest Service. The Management Plan finally signed by Kageorge neither preserves Sylvania's basic posture, nor is it enforceable. It is an utter failure! Distributed with the "white paper" was a statement entitled "Present Action of SOSAC" which included these stipulations: . . . SOSAC has suggested no specific management plan of its own, maintaining that discussions of al- ternate plans are useless while the destruction continues. In the meantime, SOSAC is researching this problem on several fronts: 1) Legal - Through our legal consultants, we are attemptingto establish a sound basis for court action [emphasis supplied]. 2) Economics - Through our finacial co-chairman we are researching the true economic value of unspoiled wilderness to the people of Gogebic County, Mich. We believe their leaders were short-sighted in advocating that this area be turned into ordinary trampled woodland. 167 3) Conservation - We are alerting organized Con- servation groups concerning the rapid deterioration of Sylvania. We are particularly concerned with its Eagle population. 4) Ecology - We are establishing a basis to measure the ecologic stability of this tract. We will document and hold the Forest Service responsible for ecological changes. 5) Defensive - As long as the present management plan is in force, we will insist, in court if necessary [emphasis supplied], on its strict compIiance by the Forest Service to its meager safeguards. )Public Information - M. M. Nelson, Deputy Chief of the Forest Service, stated in a letter to SOSAC that the present management plan cannot be changed because of "preacgquisition commitments". Other offi- cers of the Forest Service have brought up these "com- mitments" However, to this date, no member of our committee has been allowed to see a copy of these commitments. SOSAC does not believe that important policies should be determined by secret agreements made orally by U.S. government Departments. SOSAC will continue to attempt to find out what these com- mitments are, by use of the Freedom of Information Act, if necessary. SOSAC has proposed no alternate management plans to this date. We are ready to Offer alternatives, however, at the prOper time. We believe our plan would: 1) Retain the wilderness quality of Sylvania, 2) Allow public access and 3) Economically help the surrounding area more than the present plan. On September 8, Ottawa Forest Supervisor Ralph D. Kizer gave the Forest Service's rebuttal to SOSAC's alle- gations by means of a speech to the Vilas County (Wiscon- sin) Chamber of Commerce at Phelps, Wisconsin. This speech, entitled "Sylvania the Way It Is," was reprinted and widely distributed. In his remarks, Supervisor Kizer explained that Sylvania was not a pristine wilderness, 168 that the Forest Service had thoroughly revised its early plan to intensively develop the area and now planned only peripheral develOpments, and that the agency was obligated to live up to certain development commitments it had made to the local people. Referring to SOSAC, Kizer then stated (emphasis in the original): During recent months, some individuals and groups have expressed concern that Sylvania is being over- developed. This action, they say, will surely lead to the ultimate destruction of the things that make Syl- vania unique. We don't think these people want Sylvania "locked up" so nobod can enter. But they do think that the Forest SerVice should do little or nothing to encourage visitors to the area--or to take care of them--or to regulate their activities--after they are there. The contention is that those seeking the solitude and uniqueness of Sylvania can and will use the area and take care of it without the developments proposed by the Forest Service. In their view, such things as campgrounds, boat ramps, toiIets, and swimming beaches are not necessary or desirable--not even on the per- iphery of the area. Likewise, they feel that the harvest of any timber is both unwarranted and destructive. We are in complete agreement with the thinking that those values which make Sylvania unique should be preserved. We do feel, however, that public use of Sylvania's resources is compatible with the preserva- tion of its unusual values, provided adequate precau- tions are taken. . . . After describing in some detail the administrative zoning and other procedures being implemented in Sylvania to protect the area's natural values, Kizer concluded: What more can we do to protect Sylvania? I am personally committed--as are my bosses and my subord- inates--to the proposition that Sylvania and Sylvania's 169 visitors will be managed in such a way that the ex- tremely high quality of the areas's resources will not deteriorate. The Forest Service from the outset ha§——' always said this--we are still saying it--and we will continue to say it. The Sylvania Recreation Area Management Plan is based on this precept. We hope as many peOple as may want to will come to Sylvania. If the time comes that more peOple want in than the area can stand, we'll just have to turn them away. While Supervisor Kizer's September 8 prepared remarks were relatively conciliatory in tone--in fact, SOSAC was not mentioned by name--the agency's information officers at its National Forest and Regional Office head- quarters were more specific in their follow-up press re- leases. A four-page release distributed by the Ironwood, Michigan forest headquarters dated September 6 but "for release September 9" went right to the heart of the issue: "Sylvania is not being destroyed through over- development, "contends Ralph Kizer, Forest Supervisor of Upper Michigan's Ottawa National Forest. , Speaking at a meeting of the Vilas County (Wiscon- sin) Chamber of Commerce on Monday evening, Kizer described the Forest Service management plan for Syl- vania as one which "allows for public use of Sylvania's resources while at the same time preserving its unique characteristics." Kizer pointed out that in recent months, a small number of individuals and groups have expressed dis- satisfaction with Forest Service goals for Sylvania. One such group from the Green Bay area, known as the "Save Our Sylvania Action Committee," (SOSAC), has undertaken a nationwide campaign to halt further developments in Sylvania pending a review of the Forest Service management plan by a panel of inter- ested citizens. Although it is not the stated purpose of SOSAC that Sylvania be "locked up", the group would like to see little or nothing done to encourage visitors to the area. 170 They would like to see Sylvania made a part of the Wilderness Preservation System, which would in effect rule out the development of any permanent types of facilities such as camping sites, boat ramps, picnic areas or toilets. Kizer contends that placing Sylvania in this cate- gory would be contrary to the stated intentions of the Forest Service when Sylvania was acquired in 1966. At that time, the numerous individuals, organizations, and units of Government which supported Forest Service acquisition of Sylvania did so with the understanding that Sylvania's resource would be available for public use and enjoyment. . . . SOSAC has been critical of Forest Service develop- ment plans for Sylvania, contending that the area would be turned into a contemporary Coney Island. They fear that the proposed developments would attract a large number of visitors to the area, resulting in the ultimate destruction of Sylvania's unique features. "We share the sincere concern of SOSAC in preserv- ing the values which make Sylvania unique," Kizer stated. "However, we do not agree with the contention that Sylvania is being over-developed." . . . Backing up its field office and its Forest Super- visor, the Milwaukee Regional Office distributed to the press this rather testy statement for "immediate release" on November 3: "We don't intend to renege on agreements-made with Michigan officials leading to the purchase of Sylvania in spite of vociferous efforts to the contrary" - ac- cording to George S. James, Regional Forester for the Forest Service in Milwaukee. SOSAC - a Green Bay based preservation group is marshalling pressure to abandon the development plan made for the tract. James said "this plan is a culmi- nation of discussions and commitments, research and detailed studies of water quality, soils, flora and fauna with many Michigan and Wisconsin people, educa- tional institutions and government at local, State and National levels." 171 James pointed out that "until Gogebic County of Michigan gave its approval, the tract could not and would not have been purchased and included in the Ottawa National Forest. This was an original require- ment by Federal law. Gogebic County wanted full development for summer and winter public recreation, including water activities, logging, hunting and fish- ing. Forest Service people, and certain members of the Michigan Congressional delegation agreed that the tract would be developed for use and enjoyment by the American Public." James emphasized that "these agree- ments were honorable and made between honorable people and we in the Forest Service don't intend to renege on them.“ According to the Forest Service spokesman, "the Sylvania management plan calls for less development in the interior than that which was discussed initially with Gogebic County officials. Ultimately, agreement was reached for a minimum of construction in the in- terior concentrating the major effort on the periphery and in adjacent National Forest areas in Michigan." James says, "with the occasional furor associated with Sylvania it would be well to recall for the in- formation Of everyone the facts considered in order for this beautiful and inSpiring 18,000-acre area of lakes and forests to be available for public use and enjoyment." Rising to the defense of the Forest Service, edi- tors of several newspapers in the region6 suggested to their readers that, for example, "Sylvania is not a wil- derness area, as the committee [SOSAC] apparently thinks 7 it is" and that "[S]everely limited pro-conservation energy can be better expended than in trying to secure a 6After having been contacted by telephone from Ironwood by Supervisor Kizer's staff. Ralph Kizer, pers- onal interview, Lake City, Mich., Jan. 9, 1971. Editorial, Mininngournal, Marquette, Mich., Aug. 13, 1969. 172 more 'purist' conservation of Sylvania than the forest service feels it can honorably adopt."8 SOSAC, of course, was not the only citizen conser- vation group in the region concerned with what was going on at Sylvania. During September and October of 1969, SOSAC won resolutions of support for its no-development position from both the Brown County (Wisconsin) Chapter of the Izaak Walton League of America9 and from the Wisconsin Resource Conservation Council, to whom a SOSAC representa- tive, at the Council's September 13 fall conference in Manitowoc, had made this statement (excerpted): The conservation gap . . . is the reason that the Forest Service is unable to retain "the basic posture of virgin wilderness", as promised on May 21, 1967 by Michael Kageorge, co-signer of the present management plan. Thus a myOptic [sic] management plan was assem- bled from ancient patches of multiple use concepts threaded together with mechanized access. Out of this has arisen the Forest Service periphery myth. . . . [A] typical letter from the Forest Service rebutting SOSAC charges . . . states that access is being devel— oped only to the periphery of Sylvania. This map shows how motorized access crisscrosses Sylvania. . . . One of the roads on this map is on the official devel- Opment plan, but is missing from the map the Forest Service gives to the public. 8Editorial, Chicago Tribune, Sept. 15, 1969. See also, "Forester Says Sylvania Tract Not Being Over-Devel- oped," Duluth News-Tribune, Duluth, Minn., Sept. 9, 1969, and "Sylvania Recreationw_(editorial), Escanaba Daily Press, Escanaba, Mich., Sept. 15, 1969. 9Dr. Gandt is a member of the board of directors of this IWLA chapter. 173 Our second obstacle, the preacquisition commitment, is a secret agreement which the Department of Agricul- ture refuses to reveal to SOSAC. The Forest Service says it was a commitment made to preserve Sylvania, that is, a commitment to destroy Sylvania was made to preserve it! When government policy is decided in secret, we have a right to ask why. Did this commit- ment involve any exchange of tangible assets? Did it involve promotion within the Forest Service? SOSAC is challenging organized conservation to search out and to report to the public exactly what the price was for this commitment which is resulting in a priceless loss of a wilderness. Michigan Conservation Groups Disagree with SOSAC Some branches of "organized conservation"--prin- cipally those in the State of Michigan--did not agree with SOSAC's position or at least with its method of doing business. The Mackinac (Michigan) Chapter of the national Sierra Club and the Michigan affiliate of the National Wildlife Federation, for example, adopted different offi- cial policies or strategies on the Sylvania issue--dif— ferent from each other's as well as from SOSAC's. Early in 1969, the conservation committee chairman of the Sierra Club's Mackinac Chapter had directed this letter of inquiry to Regional Forester George James (excerpted): . . . It is my understanding that you have recently published the approved plan for management of the Syl- vania Tract on the Ottawa National Forest. For the use of our Conservation Committee, I would appreciate receiving five copies of this document. 174 Do you intend to holdypublic hearings [emphasis supplied] to receive citizen reactiOn to your [1968 management] plan? We wish to be kept informed of any such development. . . . our Conservation Committee wishes to under- take a detailed review of the plan and of Sylvania, and we hope to do this in the near future in COOpera- tion with your office and with the staff of the Ottawa National Forest, as well as other interested citizens. In particular, we want to evaluate Sylvania and the new plan from a regional perspective to determine, in our judgement, the desirable degree of development which should take place within the Tract itself. My own observations suggest that a considerable supply of develOped recreation opportunities and potential Op- portunities present exists adjacent and convenient to Sylvania. As a matter of general principle, in view of the unique characteristics which justified the pub- lic ownership of Sylvania, I believe that major facil- ity development should be located outside Sylvania in subsidiary service nodes or zones. The unique values of Sylvania--viewed from the perspective of the entire Upper Lakes States region-- suggest that careful consideration is needed to per- petuate the wildness of a substantial portion of the Tract. I am sure that this consideration has been fundamental in your planning, and look forward to reviewing the final plan in this regard. It is my belief that in enacting the Wilderness Act in 1964 the Congress expressed its clear directive that suitable areas be brought into this one National Wilderness Preservation System for national protection and recognition. This intent surely includes wilder- ness resources not specifically listed for review in that Act. The unique and wild values of portions of the Sylvania Tract may thus be fully suitable for and deserving of this high Congressional recognition and protective status. This is a central consideration which we wish to apply in our review of the present situation of Sylvania and your plan for its management. And, in fact, it is our feeling that the Forest Service itself might well initiate and undertake such a review --similar to those now in progress as directed in the Wilderness Act. 175 Pending such a study of wilderness potential within Sylvania it is our feeling that activities which would jeopardize such designation should be held in abeyance. This would include timber harvest of any kind and any recreational development not consonant with the stand- ards laid down in the Wilderness Act. We recognize that some developments are in exist- ence and in progress, and we feel this is fully justi- fied in the existing use areas along present highway routes and access points. Penetration of such devel- opments into presently primitive areas, however, in advance of a thorough public review of wilderness potential would be highly objectionable. I solicit your comments in particular on this point. . . .10 Presumably, the Regional Office response paralleled that directed to Drs. Prentice and Gandt. On September 4, 1969, the conservation chairman of the John Muir Chapter of the Sierra Club wrote to the chairman of the Mackinac Chapter of the Club, asking, in effect, "What do we do now?": . . . Unfortunately, nothing seems to have worked thus far and the Forest Service is going ahead with their desecration of this beautiful area.‘ The roadway which they are cutting through the trees appears cap- able of carrying six lanes of traffic. Our Executive Committee is considering what drastic courses may be open to us but, before proceeding, asked that I contact you to determine whether there has been any change in the policy of your chapter on this subject. Are we to understand Doug [Scott's] plea for active opposition, even to the point of liti- gation [emphasis supplied] as an indication that your 10Draft letter to Regional Forester James from Douglas Scott, undated. 176 people no longer feel compelled to treat lightly for fear of offending your congressional representatives? The immediate response to this query was made by telephone, but the Mackinac Chapter's conservation commit- tee discussed the issue at its September 11, 1969 meeting, with these recorded results: Sylvania Tract. We are concerned about the timber sale in the southeast corner of the Tract, with cutting to begin December 1. We need to obtain a copy of the timber plan for Sylvania and meet with the Forest Service about their plans. Until we have had a chance to review all the background (to avoid antagonizing Congressman Ruppe or Senator Hart) we cannot formulate a specific policy. Through the Midwest Regional Com- mittee we have asked the John Muir Chapter to work with us and check before taking unilateral action in the name of the Club. It has been agreed that devel- opment of a unified policy on Sylvania, in conjunction with the John Muir and North Star Chapters, will be on the agenda for the next Midwest Regional Conservation Committee meeting, November 8 and 9, in Milwaukee. A "Policy on Sylvania Recreation Area" adopted by the Sierra Club's Mackinac Chapter conservation committee on November 4, 1969 stated in part: . . . Many features of the Forest Service's "Sylvania Recreation Area Management Plan" are good, and the Forest Service is, in general, to be commended for attempting to maintain the unique qualities of the Sylvania Tract. In particular, we support the plann- ing for no roads in the interior of the tract, limited campsite facilities, and prohibition of motors on many of the lakes . llPersonal letter to Virginia L. Prentice, Chair- man, Mackinac Chapter, Sierra Club, Ann Arbor, Mich. from Donald J. Beyer, Conservation Chairman, John Muir Chapter,. Sierra Club, Madison, Wis., Sept. 4, 1969. 177 We are concerned, however, about a number of as- pects of the plan, including, among others, the following: 1) The road presently being built inside the west boundary should not be constructed. Access to Whitefish Lake should be restricted to the means indi- cated on Map A of the Management Plan. 2) The use of snowmobiles in the interior of Sylvania should be prohibited to protect the wilder? ness character, just as motors have been prohibited on the lakes.12 The use of motors on-at least the south- ern half of Crooked Lake should be prohibited as soon as possible, and preferably over the whole lake. 3) Deer Island should be classified in the 13 Botanical Zone, not the Pioneer Zone as at present. In case of fire, Deer Island will be a refuge for the unique flora of the area.‘ The camping on Deer Island which has occured should not be permitted to continue. (This is an example of the difficulty of maintaining strict controls over area use in the face of develop- ment designed to attract many visitors.) The Sierra Club Mackinac Chapter does not demand that the entire Sylvania Tract be classified as Wil- derness. However, planning for Sylvania should in- clude a survey of areas such as those designated as Botanical and Pioneer Zones for possible designation under the Wilderness Act. At the November 8 meeting in Milwaukee of the Sierra Club's Midwest Regional Conservation Committee, a detailed exposition of the entire Sylvania controversy 12Snowmobiles were banned in the Sylvania Recrea- tion Area after March 1, 1970 (for the balance of that winter season) in order to protect nesting eagles and weakened deer, Supervisor Kizer announced on Feb. 14, 1970. 13The primitive campsite facilities on Deer Island Lake were removed in 1970 and the entire lake was placed in the Botanical Zone, according to District Ranger Marsh Lefler, personal interview, Watersmeet, Mich., July 23, 1970. 178 (excerpted below) was presented by North Star Chapter delegate Richard J. Thorpe of Minneapolis, based on recent field experience in Sylvania: . . . There is no question that the Forest Service professional foresters have made a sincere effort to prepare a plan which would develop Sylvania by making it available to large numbers of people without overuse of this unique fragment of wild country. However, there are aspects of the plan and ensuing facility construction which bear review and reconsid- eration before further impact could become irrevers— ible. It is recognized that certain developmental commitments have been made by the Forest Service with local interests seeking economic improvement of the surrounding area and that, therefore, any plan involves a compromise between preservation and development. It should also be pointed out, however, that Sylvania's acquisition by the Forest Service was made possible only by the active support of the conservation and preservation-minded groups. The funds used to acquire Sylvania were Land and Water Conservation Funds--not regular multiple use appropriations. . . . The present Recreation Improvement Plan al- ready underway appears to be designed to provide facilities for projected visitor demand rather than to manipulate visitor flow. According to the Forest Service it represents the carrying out of a commitment. Considerable criticism has already been leveled over the reconstruction of a highly scenic country road up to engineering "standards" (non-scenic), the building of large campgrounds, boat launching ramps and over- night campsites on the lakes. It is feared that heavy use will be encouraged in the developed areas.with, attendant damage, litter and eventually a demand for more facilities. This basic problem in the present management plan can be handled only by revisions which change its "mass use" purpose to one which makes Sylvania's wilderness attractions available to people without destroying it. Reliable area sources report that other National Forest Campgrounds in Ottawa Na- tional Forest are not used to capacity. Since considerable construction of recreational facilities has already begun with attendant distur- bance there are limitations on action which may be 179 taken from this point on. The problem they present is concentration of heavy use at the edge of very limited and somewhat fragile resource. The Forest Service is already experiencing severe overuse of the Boundary Waters.Canoe Area in the Superior National Forest- where a much more extensive network of lakes is present. . . . . . . An independent review panel made up of ecologists, representative of responsible conservation organizations, local civic leaders and recreational specialists [should be appointed to] take testimony from all concerned citizens at a series of hearings held in various locations within Michigan and neigh- boring states. With advisory assistance, this review panel WOuld reappraise the situation and develop recommendations. Such a careful analysis would be meaningful only if a moratorium on all developments within Sylvania would be enacted. Attempts to obtain such a morator- ium on a voluntary basis have been pursued without success. It now appears that a legal action seeking a court injunctibn wiIl be initiated [emphasis sup- pliedTby a group of citizens from various midwest states. . . . The essence of Thorpe's recommendations: "[Sltop the development and get an independent review of the prob- lem." This concept was embodied in the "recommended policy" adopted by the Sierra Club's Midwest Regional Con- servation Committee at Milwaukee, Wisconsin on November 8, 1969: The Sierra Club supports the concept of limited development for recreational purposes of the Sylvania Recreation Area, Ottawa National Forest, in Michigan's Upper Peninsula. Because of its previous history, Sylvania represents one of the last remnants of virgin wilderness in the Midwest, and this wilderness charac- ter must be taken into consideration in any development of the tract. It should also be pointed out that Sylvania's acquisition by the Forest Service was made possible only by the active support of the conserva- tion and preservation-minded groups. The funds used 180 to acquire Sylvania were Land and Water Conservation Funds - not regular multiple use appropriations. This is not just a local issue, but has importance on a regional and national basis; Sylvania is located within weekend driving distance of approximately 25% of the nation's population. Many features of the Forest Service's "Management Plan" for Sylvania are good. It appears from the Plan that the management policies of the Forest Service are aimed at providing a wilderness-type experience. How- ever, the present extent and rate of development are inconsistent with the stated policy. For example, the road to Indian Lake, which was scheduled to start Fiscal Year 1971, was actually begun 20 October 1969. Furthermore, this road is not even indicated on Map A of the Plan, which shows the "Travel Influence Zones". In addition, a number of Specific aspects of the plan itself are inconsistent with the overall goals of-the Management Plan, for example: 1) The road presently being built to Indian Lake will destroy the character of the area, is unnecessary, and should not be constructed. Access to Whitefish Lake should be restricted to canoe access as shown on Map A of the Plan. 2) The use of snowmobiles in the interior of Syl- vania should be prohibited to protect the wilderness character, just as motors have been prohibited on the lakes. The use of motors on Crooked Lake should be prohibited as soon as possible. 3) The concept of different zones should be re— examined.. The zoning implies that different care and attention will be given to certain areas. The small size of Sylvania (approximately 30 sq. miles) requires that all areas receive equal attention to maintaining their quality. All these factors indicate that the present Management Plan and its administration need review. The Sierra Club strongly urges an immediate mora- torium on present development of Sylvania Recreation Area before irreparable harm is done. We request the appointment of an independent review panel made up of ecologists, representatives of conservation organiza- tions, local civic leaders, and recreation specialists to recommend revisions in the management plan and to provide a continuing review of Sylvania's development. This panel should seek the advice of experts and 181 concerned citizens, initially through a series of hearings held in various locations in Michigan and neighboring states so that all pertinent opinions can be heard. While the Executive Committee of the Mackinac Chapter of the Sierra Club, at its November 11, 1969 meeting, voted 6 to l to support the above resolution, a minority position paper was filed with the committee noting that: If examination of historic events indicates, as it so appears, that the Ad Hoc Citizens Advisory Committee for Sylvania did not have adequate opportunity to examine the preliminary management plan in its entirety, nor have the time to review it in order to act intel- ligently, then due consideration should be given to re-cOnvening that committee. The minority report urged that reactivation of the Ad Hoc Citizens Advisory Committee and its designation as a permanent management review committee be sought, rather than a series of hearings by an independent review panel. While the Sierra Club's chapters in the region agreed on a policy not far removed from that of SOSAC's, but on a somewhat different approach to achieve their goal, the National Wildlife Federation's Michigan affil- iate, Michigan United Conservation Clubs (MUCC), stood firmly by the side of the Forest Service throughout this controversy. 182 A September~22, 1969 internal memorandum from Dr. Paul A. Herbertl4 to MUCC Executive Director James L. Rouman set the tone of MUCC's response to appeals for , assistance from both sides in the controversy (emphasis in the original): 1. Note that a "Save our Sylvania Action Committee" wants to.preserve the Sylvania area and not use it for the more important forms of recreation and for multiple use. 2. We have in the western part of the U. P. the Por- cupines and now I understand the McCormick Tract has been given as a gift to the Federal government with the stipulation that it be maintained as a wilderness area. These are more than ample to meet the needs of- the wilderness users. 3. I am positive in my own mind that the interests of an extremely small segment of the people of the area, region, and the United States would benefit from the proposed use by the "Save Our Sylvania Action Committee." 4. Hence, to practice conservation, "the greatest good for the greatest number in the long run," the MUCC Board should by resolution, or otherwise inform the U. 8. Forest Service and the Secretary of-Agricul- ture of its support for the Service's proposed manage- ment plan for the Sylvania area. 14Director of Conservation Emeritus and former Professor of Forestry, Michigan State University: also past president of both MUCC and the National Wildlife Federation. 15OnApril 12, 1970, the Michigan United Conser- vation Clubs Board of Directors, meeting at Grand Rapids, approved such a policy by concurring in the following resolution, adopted on March 12, 1970, in Ann Arbor, by the Michigan Natural Resources Commission: WHEREAS, criticism of the development of the Syl- vania Recreation Area, in the Upper Peninsula of Michigan 183 The Wisconsin Wildlife Federation joined the Michigan United Conservation Clubs in endorsing without qualification the Forest Service's Sylvania Recreation Area management prOgram.16 by the U.S. Forest Service, has actually attained a state of near vilification and maligning of this respected service; and WHEREAS, this criticism is based on lack of con- sideration of the basic plans for Sylvania that were determined at the time of the acquisition of this tract; and WHEREAS, certain representations were made by the Forest Service to the people and political subdivisions that were immediately affected by this acquisition, thereby eliciting the approval and support of the pe0ple for the acquisition; and WHEREAS, the plans for the development of Sylvania were most carefully conceived to fulfill these representa- tions and to provide all possible interests and utilization within the limitation of the area; and WHEREAS, these plans_were carefully studied and approved by many of the qualified peOple in parks and allied administration and other professional peOple in the Michigan Department of Natural Resources; and WHEREAS, in the development and execution of these plans the U.S. Forest Service has scrupulously respected- the concepts embodied in these plans: THEREFORE BE IT RESOLVED that the Commission of Natural Resources of the State of Michigan deplores the unwarranted charges made against the Forest Service and hereby expresses its confidence in the management of the Sylvania Recreation Area by the Service and further com- mends the Service for its excellent administration of the area. On April 30, 1970, MUCC Executive Director Rouman sent copies of the above resolution to the entire Michigan Congressional delegation together with a letter "requesting that they disregard attempts of SOSAC to disrupt plans of- the U.S. Forest Service for the development of Sylvania." Personal letter to Senator Philip A. Hart from James L. Rouman, April 30, 1970. F 184 SOSAC's "Walk to Whitefish" Dr. Gandt's next gambit to win publicity and sup- port for SOSAC's campaign against develOpment within the 16Personal letter, to James L. Rouman from William L. Reavley, Field Services Director, National Wildlife Federation, Washington, D.C., Nov. 4, 1969: "We are re- ceiving some inquiries concerning the management of the Sylvania tract in the U.P., and of course we are being bombarded by the vieWpoints closely aligned with the Sierra Club and other organizations. Our Wisconsin affil- iate has gone on record in favor of the Forest Service's viewpoint of multiple use. . . ." See also, issues of News and Views, monthly newsletter of the Wisconsin Wild- Iife Federation, for October 1969 ("The new [Sylvania] plans are even better than the old ones and [the WWF Resources Committee] supports them wholly."), November 1969 (which includes WWF's May 3, 1969 resolution in sup- port of the Forest Service management plan), and February 1970 (which includes a special section with map entitled "The Truth About Sylvanial"). Les Woerpel, Chairman, Nat- ural Resources Committee, Wisconsin Wildlife Federation, in a three-page letter sent to Senators William Proxmire and Gaylord Nelson (as well as many carbon copy recipients) on Feb. 4, 1970, accused SOSAC of "nit-picking the Forest Service to death." Said Woerpel: "We look on SOSAC as interfering in the development of Sylvania according to the plans approved by the people of the area, of Wisconsin, and of the country through Congressional action to purchase under these restrictions, as interfering with the credi- bility of the Forest Service, and of using the Congress as a bludgeon against the Forest Service." On April 18, 1970, the Wisconsin Wildlife Federation, assembled in convention at Stevens Point, resolved: . . . that we deplore the unwarranted charges made against the Forest Service, and hereby express our confidence in the management of the Sylvania Recreation Area by.the Service and further, commend the Service for its excellent administration of the area. "BE IT FURTHER RESOLVED, that since the apparent aim of the organizations which are interfering with the Forest Service's plan of administration for the Sylvania area is to compell the reversion of the area to a closed 185 Sylvania area was a kind of protest march or demonstration called "A Walk to Whitefish [Lake]." Michigan Governor William G. Milliken, Mrs. Lyndon B. Johnson, Secretary of AgricultureClifford Hardin, Forest Service Chief Ed Cliff, and Forest Supervisor R. D. Kizer were invited, but de- clined to participate.17 Some 200 others did make the Wilderness Area, the Wisconsin Wildlife Federation will oppose this aim with all of the facilities at its dis- posal." SOSAC's "Director of Scientific Information," Dr. Robert B. Ditton, Professor of Leisure Sciences at the University of Wisconsin at Green Bay, suggested to the author that "most other conservation groups are put off by SOSAC either because SOSAC's scientific explanations are over their heads or because they think taking the United States Forest Service to court is 'impolite'." Personal interview, Green Bay, Wis., July 21, 1970. 17Governor Milliken's Sept. 30 letter of regrets stated: ". . . I would like to wish you success with your planned 'walk.‘ It is important that we protect and pre- serve what few wild regions we have left in our country. . . ." In response to Dr. Gandt's Sept. 17 invitation to Secretary Hardin (". . . I am sure that a personal in- spection would convince you that the quality of Sylvania is deteriorating. . . . [W]e think the Department of Agri- culture should be responsive to the growing demand for a moratorium in Sylvania."), the SOSAC leader was informed by Assistant Secretary T. K. Cowden on Sept. 30 that ". . . [W]e share your concern . . . appreciate having your views . . . [and believe that] the [Sylvania] plan will accomplish most of the objectives you seek." In his Sept. 29 invitation to Chief Cliff, Dr. Gandt stated: "I can assure you that your personal inspection will convince you that the reports you have received from the Eastern Regional office are inaccurate and misleading in regards [sic] to the preservation of the wilderness quality in this tract." Mr. Cliff and M. M. Nelson responded, on Oct. 8 and Oct. 16, respectively, that they had schedule conflicts and couldn't participate in the walk. Super- visor.Kizer, on Oct. 16, indicated that he had scheduled 186 trek,.however.l8 SOSAC's October 25, 1969 press release provides a description of the event from its point of view: Watersmeet, Mich. - Sylvania, a 19,000 acre tract of wilderness in Upper Michigan, played host to over a trip into~the newly acquired McCormick prOperty on Oct. 25. Dr. Gandt's Sept. 16 invitation to Mrs. Johnson, which apparently went unanswered, deserves reproduction here in-its entirety as a summary of SOSAC's~view of the Sylvania situation: "In July 1966, the American people purchased a beautiful dream and a virgin wilderness called Sylvania, whose care they-entrusted to the Forest Service. And as you traveled the length and breadth of [our] country in your fight for beauty when President Johnson held office, you came to our small wild cluttered forest-and dedicated a plaque on the northern shore of Clark Lake commemorating this purchase. "Because you were here, those of us who love Syl- vania are especially concerned that you are kept informed of its rapidly deteriorating condition. No longer would you wind your way down a crooked dark road to your dedica- tion site, now it is-accessable by a bright wide highway~ cut through the forest. Above the plaque, on a hill, stands a bathhouse and concession stand, below it a boat ramp and parking lot, around it litter. Today gasoline powered boats, cars, and snowmobiles join the trampled scene which the Forest Service is develOping for 800,000 annual visitors. "Won't you come back to Sylvania to join us in our walk of October 25, and help us once more restore the dream that was Sylvania?" 18Many of them got lost in the-woods for several hours, having refused the services of Forest Service guides. On the morning of the day of the walk, an ecology class from the University of Wisconsin at Green Bay led by Pro- fessor Tom Mowbray met with Deputy Forest Supervisor Pat Sheehan and other forest officers at Sylvania. While the students reportedly felt the Forest Service representatives were unresponsive and that their statements were inconsis- tent, the forest officers felt unable to complete their statements because of heckling and interruptions from the students. The students later participated in the "Walk to Whitefish." Richard Guth, telephone interview, Dec. 23, 1970. i=1] 187 200 people protesting its development by the Department of Agriculture and the Forest Service. The occasion, "A Walk to Whitefish", was sponsored by the Save Our Sylvania Action Committee (SOSAC) to halt construction of a road through the wilderness to Whitefish Lake, one of the largest lakes in Sylvania not yet served by wide access roads. SOSAC has encouraged further study of-Forest Serv- ice develoPment plans which are designed to convert the tract, one of only a few wilderness spots remain- ing East of the Mississippi, to a general recreation and logging area. Among activities at the "walk" was the planting of a tree as part of a "Rededication of Sylvania". A rededication plaque was erected which read in part: "With the planting of this tree, we rededicate Sylvania to all Americans who love our land. Let this-tree be the first suture in closing the wound torn into Syl- vania by those who are exploiting it, either for monetary gain or profitless doctrinarianism" Dr. Jerry Gandt, Chairman of SOSAC, said: "In September when this walk was announced, I had requested the Forest Service not to begin cutting this virgin timber until it could be seen by those participating. Ignoring public concern, orders to proceed cutting were given by the Forest Service on October 6, and cutting began on October 20, five days before the walk" As a result much of the walk took place among stumps and felled trees. Comparing this to a previous era of American history, Dr. Gandt declared: "This is plainly chain-saw diplomacy." James Panucci, member of SOSAC, said: "the organi- zation is interested in having experts from outside the government given the task of evaluating present development plans. We think", Panucci continued, "that the possibility of short-term economic gains for the Watersmeet area weighed too heavily in the drafting of present devel- opment plans. The present plans reflect the normal, but tragic outcome when short-term economic growth runs head-on into the need to maintain the quality of our environment. Inevitably we sacrifice the quality of our envi- ronment, and that trend must be reversed". 188 The Watersmeet Chamber of Commerce organized a "counter-walk", but only 5 people appeared, none of whom bothered stepping into the forest. SOSAC achieved its objective of the "walk" to the extent that it won some favorable press and radio coverage; papers throughout the region picked up its theme, and net- work radio personality Arthur Godfrey congratulated SOSAC for its efforts on a nationwide broadcast.19 19An example of press coverage supporting SOSAC's position was this Nov. 4, 1969 editorial in the Menominee, Mich. Herald-Leader: "The U. S. Forest Service is doing a disservice to the people by the way it is develOping the Sylvania tract in Gogebic County. "Sylvania's 19,000 acres, located on the Michigan- Wisconsin border, is one of the last true wilderness areas east of the Mississippi River. Instead of allowing Syl- vania to remain a wilderness to be enjoyed by this and future generations, the Forest Service is cutting trees, building roads and putting up tourist accomodations. "It is a shame to see such a beautiful area scarred by man. “A valiant effort is being made by the Save Our Sylvania Action Committee (SOSAC) to stop the Forest Service. A March to the Whitefish--the last remaining wilderness lake in Sylvania--was held a week ago and it drew 200 people. The Forest Service has ignored requests from SOSAC to stop the construction of a road to Whitefish Lake. In fact, the Forest Service denied to SOSAC offi- cials that a contract for construction of the road had been signed even after it was done. "It is the contention of the Forest Service and also some businessmen in the Watersmeet-Sylvania area that the wilderness tract must be developed so it can be used by all people. SOSAC believes that as much of the area as possible should be left in its natural state. "The ridiculous part of the whole thing is that in the Ottawa National Forest which covers the entire western 189 A Failure to Communicate Two weeks before the "Walk to Whitefish," Dr. Gandt had been the guest of the Forest Service on a three- day trip (October 10-12) into the Boundary Waters Canoe Area, part of the Superior National Forest in northern Minnesota and a unit of the National Wilderness Preserva- tion System. He was accompanied on this visit by both Ottawa National Forest Supervisor Kizer and Superior Na- tional Forest Supervisor Craig Rupp. Regional Forester James set the stage for this trip in his September 29 letter to Dr. Gandt: We are happy that you plan to visit the Boundary Waters Canoe Area. . . . The visit should be most profitable to all of us. We look forward to sharing your thoughts on the problems of management in this outstanding area. Unfortunately, the most tangible thing to come out of the BWCA tour in October was what appears to have been portion of the Upper Peninsula, there are hundreds and hundreds of campsites and lakes which are accessible by. car. We don't really need to ruin the scenic, wild beauty of Sylvania. "In opposing the action of the federal government, the Wisconsin Izzak Walton League said in a resolution last week: '. . . since it is the people and not the United States Forest Service who owns this land, the United States Forest Service is urged to heed the wishes of the people to save Sylvania from the commercialization which generally follows the building of roads, cutting of trees and building of tourist accomodations.‘ "The federal government would do well to consider the sad long-range effect of their program for the ruina- tion of Sylvania's wilderness." 190 a bona fide misunderstanding between Messrs. Gandt and Kizer regarding the agency's-plans for construction within the Sylvania area of a new, 2.2-mile segment of forest highway, to be located close to Sylvania's western bound- ary, between Long Lake and the entrance to the half-mile portage into Whitefish Lake.‘ Dr. Gandt returned from the BWCA trip with the mistaken impression that_no contracts for right—of-way clearing or construction of this-road had been let or would be in the near future. What happened apparently was this: Supervisor Kizer was asked by Dr. Gandt, while they were airborne in a noisy, three-place Forest Service plane, "When are you going to build the road to Whitefish Lake?" Kizer's response was, "I don't know; we don't have any money for it." Dr. Gandt had in mind the 2.2-mile forest highway segment which "had been. in the works for a year";20 Supervisor Kizer had in mind the quarter-mile spur off this road into the Whitefish Lake access parking area, a project nowabandoned.21 Dr. Gandt, shocked when he arrived at Sylvania for the "Walk to Whitefish" to see stumps and bulldozers, at work, cried "foul." 20Road Construction Contract No. 01-2203, White- fish Lake Road No. 355, dated Sept. 17, 1969. 21Ralph Kizer, personal interview, Lake City,, Mich., Jan. 9,_l97l. 191 On October 16, 1969, the following letter was mailed by Owen Phelps, associate editor of a Denmark, Wisconsin newspaper and SOSAC's Director of-Public Infor- mation, to Regional Forester James:22 On October 12, Dr. Jerry Gandt, Chairman of SOSAC' asked Ralph Kizer, Ottawa Forest Supervisor, when the road from County 535 to Whitefish Lake would be con- structed, and Mr. Kizer informed him that no date has been set, and no contracts have been let, and there were no plans to let any contracts in the near future. Today, Quincy Dadisman in the Milwaukee Sentinel states: "Two weeks ago, the forest service let an $81,900 for building 2.2 miles of road along the westernperiphery of Sylvania. A spur from that road will lead to a dead end parking area from which a quarter mile trail will lead to a boat launching site on Whitefish Lake." SOSAC would like an immediate statement from your office as to who is correct--the Milwaukee Sentinel or the Ottowa Forest Supervisor. If, indeed, this con- tract has been let, SOSAC will issue a statement deploring this "chain-saw-diplomacy”, and SOSAC will publicly question the authenticity of all Forest, Service‘Statements. If, on the other hand, this contract has not been let, please inform Mr. Dadisman at the Milwaukee Sentinel,-so that a correction can be made. Phelps' letter was followed by a similar letter to the Regional Forester from D. F. Quinn of Escanaba, Michi- gan, an insurance salesman and a leader of SOSAC's Michigan contingent; the letter is dated October 23: 22Copies of this letter were sent to "Quincy Dadisman, Secretary of Agriculture, Legislative Represen- tatives, Sierra Club, Izaak Walton League, Audubon Society, SOSAC Attorneys." [Emphasis supplied] 192 It has come to my attention that there has been a contract let for the road construction leading to Indian Lake in the Sylvania. This road, as you know, will penetrate the heretofore isolated area of the western periphery of the Sylvania and will make White- fish Lake accessible to its ultimate destruction quicker than if no road or spur was provided. It has also come to my attention that there is some discrepancy between Milwaukee and Ironwood as to the fact that such a contract has or has not been let. Apparently the Forest Supervisor is unaware that such an act has been performed; in fact it is my under- standing that the existence of such a contract has been denied by the Forest Supervisor and knowledge of any future move in this direction was also denied. I would sincerely appreciate hearing from you as to the exact status of this road and if the rumors are false and I would also appreciate your thoughts as to when such a road is contemplated in the future. Decision to Sue Made as Last Resort Eight months of intensive effort to find an "ad- ministrative remedy" for Dr. Gandt's complaint had yielded, as he saw it, no results. New buildings and recreational facilities were being constructed in Sylvania; big trees were being felled there for a new, high-standard highway and to reduce the falling-tree hazard around campsites;. the Marsh Lake timber cutting was about to begin. Last- resort measures were called for; only a court order could "save" Sylvania now, he believed. And on this belief SOSAC acted. The following two letters to Dr. Gandt from the Milwaukee Regional Office--the first dated November 12, 1969; the second November 13, l969--tell part of the story: 193 Information Officer Donald S. Girton first wrote as follows: Regional Forester James and I were happy to meet with you briefly at the recent Sierra Club Meeting in Madison.23 Likewise, we are pleased that you will be able to meet with us here in Milwaukee on Monday morn- ing, November 17, to discuss Sylvania. We will plan on taking whatever time is necessary to sufficiently discuss the issues. . . . We look forward to meeting with you on November 17. If we can provide you with any-additional infor- mation do not hesitate to call on us. Deputy Regional Forester Jay H. Cravens found it necessary to follow Girton's letter with another, the next day: The purpose of this letter is to confirm our tele- phone conversation of this afternoon regarding our November 17 meeting. We have just been advised that litigation involving the Sylvania Tract is now pending in the Federal Court. at Grand Rapids, Michigan: The case is in the hands of the Department of Justice. Under these 3Regarding this meeting, Dr. Gandt found it ad- visable to send the following note to U.S. Senator Philip A. Hart of Michigan on Nov. 10: "George S. James, Regional Forester of the U.S. Forest Service, at the Fall meeting of the Wisconsin Sierra Club on November 9, 1969, read a statement which he attributed to you which stated that-you opposed a movement underfoot to lock up Sylvania. Fur- thermore, Mr. James implied that you were referring to the Save Our Sylvania Action Committee (SOSAC). I wish to assure you-that this implication is incorrect, and that the motives of SOSAC are to make this tract available to the-American public, to which it belongs. I suggest that you investigate the true motives behind Mr. James' attack on our committee: namely his failure to come up with and to execute a plan which will not destroy the quality of the area." 194 circumstances our hands are tied procedurally and we are unable to hold the meeting as scheduled. Thank you for your letter of November 12 to Mr. Donald S. Girton. We are very sorry that the Court action pre—empted our plans to meet with you. When the proceedings are clarified we want very much to meet with you and discuss items of mutual interest to SOSAC and the Forest Service. And so the die was cast: SOSAC and the Forest' Service would "see each other in court." Fresh from his courtroom effort on behalf of the Forest Service in Denver,24 U.S. Department of Justice Attorney Nelson H. Grubbe flew into Milwaukee to organize the government's defense. In-contrast to his experienced approach to the situation, the SOSAC nucleus in Green Bay found itself struggling to meet an imminent court hearing deadline without any previous experience to help it take the next step in,a manner most likely to obtain success. This expertise gap--plus the obvious disparity in financial resources--placed SOSAC at a disadvantage from the start. 24See Parker v. U.S., 307 F. Supp. 685 (D. Colo. 1970) (No. C-1368, Feb. 277 1970). The case involved conservationist opposition to a Forest Service timber sale near the boundary of the Gore Range-Eagle Nest Primitive Area in the East Meadow Creek watershed of the White River National Forest, in an area which could be included in the proposed Eagle Nest Wilderness by the Congress. CHAPTER IX SYLVANIA: SOSAC'S COMPLAINT DISMISSED BY FEDERAL JUDGE The complaint of SOSAC and its allies,1 seeking a temporary restraining order and a temporary injunction "to enjoin the cutting of timber, trees, or shrubs and the clearing of trees, shrubs or bushes, the making of roads for any motorized vehicles and further to enjoin any other 1"Dr. Jerry Gandt, 961 West Mason Street, Green Bay, Wisconsin; SOSAC, Inc., 961 West Mason Street, Green Bay, Wisconsin; Dr. B. C. Prentice, 704 7th Avenue West, Ashland, Wisconsin; Michigan Audubon Society, 7000 N. Westnedge, Kalamazoo, Michigan; Robert Francis Briskie, 1009 Vaughn Avenue, Ashland, Wisconsin; Mary Alice Briskie, 1009 Vaughn Avenue, Ashland, Wisconsin; Donald L. Hurt, lll7 Downer. Drive, Green Bay, Wisconsin; Jack C. London, 436 Comstock Boulevard N.E., Grand Rapids, Michigan; Wisconsin Resource Conservation Council, Box 707, Mellen, Wisconsin; Wisconsin Ecological Society, Inc., P.O. Box 514, Green Bay, Wiscon- sin; Donald G. Schimpff, P.O. Box 35, Powers Lake, Wiscon- sin; Wm. H. Magie, 3515 E. 4th Street, Duluth, Minnesota; Dr. Thomas B. Mowbray, 1003 Cornelious Drive, Green Bay, Wisconsin; Dr. Ronald Starkey, 1405 Emilie Street, Green Bay, Wisconsin; Dr. Paul E. Seger, 2201 Hillside Lane, Green Bay, Wisconsin; Dr. Michael D. Morgan, 2249 Hillside Lane, Green Bay, Wisconsin; Richard J. Thorpe, 3460 Wescott Hills Drive, St. Paul, Minnesota; Dennis L. Bryan, 3779 Cornelius Court, Green Bay, Wisconsin; Dr. Deam W. O'Brien, 1434 Marhill Road, Green Bay, Wisconsin; Robert W. Moody, 608 N. Barstow, Waukesha, Wisconsin; Dr. Robert Ditton, 1567 Deckner, Green Bay, Wisconsin; and Donald F. Quinn, P.O. Box 587, Escanaba, Michigan:" Plaintiffs, Gandt v. Hardin (W. D. Mich. 1969) (Civil Docket No. 1334) Complaint, p. 1. 195 196 similar activity which would be destructive of the wilder- ness character of the area popularly known as Sylvania. . ."2 was filed by their attorneys. Fred A. Reiter and Bernard U. Roels of DePere, Wisconsin, with the United States Dis- trict Court at Kalamazoo, Michigan on November 10, 1969.3 Defendants cited in the complaint were: Clifford Hardin, individually and as Secretary of Agri- culture of the United States; Edward P. Cliff, individ- ually and as Chief, United States Forest Service; Ralph Kizer, individually and as Supervisor of Ottawa National Forest; Marsh Lefler, individually and as District Supervisor of Watersweet, Michigan, District of Ottawa National Forest. The action was brought under Section 10 of the Administra- tive Procedure Act U.S.C., Section 701 ff, (1966), the Declaratory Judgment Act, 28 U.S.C., Section 2201, 2202, and Sections 1331, 1346 and 1361 of the Judicial Code, Title 28, U.S.C.4 In its complaint, the conservationist-plaintiff group described Sylvania as a wilderness area in the terms used to define "wilderness" in the federal Wilderness Act, asserted that Sylvania was "purchased primarily because of O I O 5 its unique and rare character as a Wilderness area," and 2Ibid., pp. 1-2. 3§Endt v. Hardin, (W.D. Mich. 1969) (Civil Docket No. 1334) Transcript of Proceedings, Dec. 9-10, 1969, p. 252. 4Complaint, p. 1. 5 Ibid., p. 6. 197 alleged that the Defendents herein named are participating in the cutting and felling of trees and timber and in the clearing of timber trees, shrubs and brush and in the installation of a road for motorized vehicles within the area hereinbefore described as "Sylvania" [and] [tlhat such activities on behalf of the Defendants, their agents, officers and emplOyees are contrary to the intent of congress as expressed in the 1964 Wilder- ness Act, 16 U.S.C., Section 1131 ff and further are contrary to the intent of the U.S. Forest Service in originally purchasing the area hereinbefore described as "Sylvania" in that such activities violate the original intent in purchasing this area which was to keep it in its wilderness condition.6 Having reviewed the legislative and land-acquisi- tion history of Sylvania, we can easily imagine what the reactions of George James, John Wernham, and local offic- ials such as Watersmeet Township Supervisor Frank Basso were to the above assertion. The complaint also alleges that Upon information and belief, the recreational and wilderness qualities of the area hereinbefore described as "Sylvania" has not been considered by the Defendants, and that they have thereby acted without authority, unreasonably and in an arbitrary manner in violation of the multiple use-sustained yield act, 16 U.S.C., Sec- tion 528 ff., the 1964 Wilderness Act, 16 U.S.C., Sec- tion 1131 ff., and of Section 221.1 of Title 36, Chapter 11 of the Code of Federal Regulations, issued pursuant to 16 U.S.C., 551, 572, in that they have not made a reasonable or sufficient study of the rec- reational and wilderness qualities of the said Sylvania area and of the adverse effects of the present cutting down and felling of trees and clearing of trees, shrubs, brush and undergrowth, and of the present laying out of a road for motorized vehicles and of the sale of timber and cutting of timber pursuant to the aforesaid 6Ibid., p. 6. 198 Kimberly-Clark contract, upon said recreational and wilderness qualities, upon the environment, including the water resources and wild-life, of the "Sylvania." Upon information and belief, Defendants, in addition, have failed to adequately investigate alternative areas for the felling, clearance and sale of timber and have failed to adequately investigate alterna- tive areas for the laying out and installation of. roads for motorized vehicles and have failed to ade- quately investigate and consider alternative areas for the kind, intensity, and extent of recreational use which Defendants have proposed in their document entitled "Sylvania Recreational Area Management Plan" hereinbefore referred to and specifically submitted by Forest Supervisor, M. W. Kageorge and Regional Forester, George James. Further, upon information and belief, that Defendants have failed to make sufficient and adequate studies and long range plans of the public needs for the various legitimate uses of thg Ottawa National Forest and the Sylvania area . . . "Unless this court enjoins any further cutting or felling of trees or timber and enjoins any further clear- ing out of trees, timber, shrubs, brush and under-growth and enjoins any further installation of the road herein- before mentioned" states the complaint, a) The wilderness character of the area “Sylvania" affected by the above described acts of the Defendants and an indeterminate area of the surrounding land will be needlessly, certainly, substantially, materially, irreparably damaged, and the right of the Plaintiffs herein and of the public to have such areas preserved as wilderness in accordance with Congressional intent will be needlessly, substantially and irreparably compromised or destroyed; b) The recreational use in and about the area hereinbefore described and subject to the acts of Defendants hereinbefore described will be needlessly, certainly, substantially, materially, and irreparably damaged; 7Ibid., pp. 6-7. 199 c) Waters including ponds and lakes in the area, which already have been reduced in their purity due to the acts of Defendants alleged aforesaid, will be further polluted and adulterated needlessly, substan- tially, certainly, materially and irreparably damaged thereby; d) There will be created a grave danger to the environment, including wild-life and especially to the Eagle Sanctuary which is found here, and the fish, in and around the "Sylvania" area; and e) The study and implementation of long range plans for the judicious use of the various resources, includ- ing wilderness, [of] the "Sylvania" area, and the ju- dicious weighing of the relative importance of all of the resource value thereof will be needlessly, cer- tainly, subgtantially, materially, and irreparably prejudiced. In closing the complaint stipulated, as all such complaints must, that the plaintiffs (1) had exhausted all administrative remedies available to them and (2) had no adequate remedy at law.9 Filed with the complaint was an affidavit taken under oath on November 5, 1969 in support of the motion for a temporary restraining order and a tem- porary injunction. This supportive statement was made by SOSAC's attorney, Fred Reiter. The plaintiff's complaint, together with a summons requiring an answer to the complaint within 60 days, was served on the federal defendants on November 12, 1969. The time allowed for the filing of an answer to the complaint was reduced to 20 days in a second summons 0 8Ibid., p. 8. 9In other words, they were not in a position to ask for money damages. 200 Following submission to the court of their ll-page Complaint which initiated the litigation, the plaintiffs filed with the court a lZ-page Brief in Support of Plain- tiff's Complaint and Relief Requested Therein, a 29-page Brief in Support of Plaintiffs' Motion for Injunction (filed with the court on December 2), a three-page First Amendment to Complaint, and a four—page Supplemental Brief in Support of Motion for Preliminary Injunction and for Injunction (filed with the court on the day of the hearing, December 9). In these documents, SOSAC's attor- neys made these arguments on the plaintiffs' behalf: The Plaintiffs' Allegations 1. The litigants are proper parties to bring an action (they have standing to sue; there is a violation of the public interest; they have standing to represent that pub- lic interest). Leading cases cited included Flast V. Cohen, 392 U.S. 83 (1968), Scenic Hudson Preservation Conference_ v. FPC, 354 F.2d 608 (2nd Cir. 1965), cert. denied, 384 U.S. 941, and Office of Communication of United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966). 2. The machinery exists which enables the litigants to seek judicial review (the Administrative Procedure Act, 5 U.S.C. 701 ff). Leading cases cited: Estrada v. Brown, 342 F.2d 205 (5th Cir., 1965), Norwalk Core v. Norwalk Re- development Agency, 395 F.2d 920 (2nd Cir., 1968), and Road Review League, Town of Bedford v. Boyd, 270 F. Supp. 650 (S.D.N.Y., 1967). 201 3. The defendants had engaged in unlawful acts (they did not follow the mandatory--not discretionary--provi- sions of the Multiple Use-Sustained Yield Act, 16 U.S.C. Secs. 528 et seq. which require, inter alia, that "[i]n the administration of the national forests due considera- tion shall be given to the relative values of the various resources in particular areas}'nor did they give adequate consideration in the Sylvania management plan to the pro- tection of the bald eagle, as plaintiffs' allege is re- quired under the Endangered Species Act, 16 U.S.C. Sec- tion 668aa, ff. 4. The defendants were about to deprive Congress and the President of the United States of their opportunity to consider the area for specific designation as a wilderness area (under the terms of the Wilderness Act, 16 U.S.C. Sec- tion 1131), also described as usurping the Congressional prerogative in this regard. The forest officers involved in the implementation of the Sylvania management plan, said Messers. Reiter, Roels, and Barron, were acting beyond their authority (ultra yireg), abusing their administrative discretion, denying to the interested public due process (by not acting in “cooperation" with outside groups nor holding "full and proper" public hearings), acting adversely to the public interest (because of their desire.to fulfill certain "com- mitments" to a "small band of local people"), failing to 202 perform required "conditions precedent" (making adequate resource base studies and judiciously weighing alternative management schemes, as required by the Multiple Use Act), and, in short, "totally destroying the wilderness character of Sylvania . . ." rather than, as the Multiple Use Act requires, implementing a plan which "best meets the needs of the American people." Anything less than immediate in- junctive relief, stipulated the plaintiffs' briefs, would be "a mockery of justice."10 The plaintiffs' briefs included some questionable assertions (references to plans for roads reaching "deep into the heart" of Sylvania, facilities for 800,000 visi- tors annually [from the 1964 study, not the 1968 manage- ment plan], and the construction of "very sizable and permanent" logging roads [wrong, at least in the case of the Marsh Lake sale]). They made several points well worthy of the court's attention, however: Was the national interest sacrified to meet local commitments? Wasn't Sylvania a "de facto" wilderness area (see pages 10 and 11 of "A Brief in Support of Plaintiff's Complaint etc.")? Couldn't the Multiple Use Act's provision that "[t]he establishment and maintenance of areas of wilderness are consistent with the purposes and provisions of this Act" be applied in this case? Did the Defendants accord the loBrief in Support of Plaintiff's Complaint, p. 12. 203 Plaintiffs a reasonable opportunity to be heard with res- pect to the proposed development of Sylvania? The poten- tial "waste" of Sylvania's wilderness resource was alluded to in the plaintiffs' briefs, which also noted explicitly that, with respect to on-going road construction within Sylvania, there already was an "existing road which cir- cles the perimeter of the [Sylvania] area" and that new roads within the area probably would be used to facilitate logging as well as for recreational driving purposes. Per- haps potentially most difficult for the Forest Service to deal with (because it actually was short of both detailed basesline data on some resources and alternative-use stu- dies)11 was the allegation that, with respect to the 1968 management plan, it had "not made a reasonable or suffi— cient study of the recreational and wilderness qualities of the . . . area and of the adverse effects of the pre- sent cutting down and felling of trees . . . upon said recreational and wilderness qualities, upon the environ— ment, including the water resources and wild-life, of the 'Sylvania'" in accordance with the terms of the Multiple Use Act. llE.g., presently available soils data for Sylvania are too broad-brush to be of much help in making specific land-use decisions, according to Forest Supervisor Ralph Kizer, personal interview, Lake City, Mich., Jan. 9, 1971. Kizer has sought unsuccessfully to have a full-time soils scientist assigned to the Ottawa Forest to remedy this deficiency. 204 The Defendants' Answer Federal Attorney Nelson Grubbe filed the defendants' answer to the SOSAC group's charges in a "Memorandum of Points and Authorities in Opposition to Preliminary Injunc- tion." In this terse, nine-page document, Attorney Grubbe attempted to dispose of the conservationists' allegations with these contentions: 1. The plaintiffs have only a general interest (not a prOperty or ecOnomic interest) in the management of the national forests. Their interest is no different from the interest of the general public.. Their interest in the con- servation and preservation of the natural resources located in the national forests is not "legally protected." The plaintiffs have no standing. Cases cited: Perkins v. Lukins Steel Co., 310 U.S. 113 (1939), Jenkins v. McKeithen, 395 U.S. 411 (1969). 2. This is a suit against the United States which has not been authorized by Congress (the "sovereign immunity" hurdle). Cases cited: Larson v. Domestic and Foreign Corp., 337 U.S. 682 (1949), Dugan v. Rank, 372 U.S. 609 (1963), and Malone v. Bowdoin, 369 U.S. 643 (1962). 3. On the administrative discretion issue, the courts have often denied the plaintiffs relief when asked to sub- stitute the court's judgment for that of the land adminis- trator. Cases cited: Panama Canal Co. v. Grace Line Inc., 356 U.S. 309 (1958), Knight Newspapers, Inc. v. U.S., 395 F.2d 353 (C.A. 6, 1969). 205 4. "The plaintiffs cannot establish that there is a likelihood that they will prevail on the merits." 5. "The Wilderness Act has no application to the facts of this case." 6. The plaintiffs suffer no damage by reason of the acts of the Federal defendants. Attorney Grubbe's conclusion was as follows: The plaintiffs are not the class of litigants that the courts will recognize. The acts complained of have been authorized by law. The land administrators have been granted broad discretion to manage the national forest within the policies established by Congress. The court should not second-guess these experts. The complaint should be dismissed. The federal defendants will offer evidence to show that the management plan for the Sylvania area was made in full compliance with the applicable statutes. Evidence will also be available concerning the reasonableness of the manage- ment plan. There has been no damage to the plaintiffs and there is no threat to the plaintiffs legal rights. The injunction should not issue. The November 24 "Order To Show Cause" Perhaps in response to the plaintiffs' original complaint which "includes . . . an implicit request for a perpetual injunction,“ United States District Judge W. Wallace Kent signed an order on November 24, 1969 in Kala- mazoo, Michigan in the presence of attorneys for both sides, stipulating that “ . . . the Plaintiffs' Motion for a Pre- liminary Injunction shall be set down for a hearing on the merits and final disposition on the 9th day of December, 1969 at 1:30 in the afternoon in the courtroom of the United States District Court for the Western District of 206 Michigan, Northern Division, Marquette, Michigan . . ." Attorney Barron, the plaintiffs' Kalamazoo representative and the author of the order to show cause,12 apparently never informed his colleagues in Wisconsin that the case was to be argued on December ninth and tenth on the merits, nor did Judge Kent send Attorney Reiter a copy of the order. Reiter and his co-counsel at the hearing, H. Anthony Ruckel of Denver, Colorado, were nonplussed when advised of this fact in mid-hearing. They were prepared at that time only to argue the question of standing and were not ready to argue the merits of the case. Preparation for the Hearing Confusion over the purpose of the December 9-10 hearing in Marquette was only one of the problems facing the attorneys representing SOSAC and its allies.13 They had only a few days to prepare their case; they were un- familiar with the Sylvania area; and initially they had no one to call on for truly "expert" testimony on such vital issues as the flaws in the Sylvania management plan, the absence of "due consideration" of the impact of the 12Gandt v. Hardin (W.D. Mich.) (Civil Docket No. 1334) Transcript of Proceedings, Dec. 9-10, 1969, p. 270. 13"The co-plaintiffs joined out of curiosity." Dr. Robert Ditton, Assistant Professor of Leisure Sciences, University of Wisconsin at Green Bay, personal interview, Green Bay, Wis., July 21, 1970. 207 plan on all resources, and the possibility that implementa- tion of the plan might result in irreparable injury to cer- tain of those resources. The main testimony developed by SOSAC's lawyers actually was put together in Marquette the night before the hearing.14 It was not until the October 25 "Walk to Whitefish" that Dr. Gandt "decided to go to court to try to stop fur— ther development.‘ Realizing he needed expert advice, he turned to specialists . . ."15 Up to this point, SOSAC had "existed primarily as a group reported in the press;" only a handful of individuals, it "tried to exert pressure 16 through press releases." The members of SOSAC "didn't want to go to litigation, because of [the cost and the 14According to Dr. Paul Sager, limnologist, and Dr. Ron Starkey, chemist, University of Wisconsin at Green Bay faculty members, personal interview, Green Bay, Wis., July 21, 1970. Pre-trial discovery would have permitted the plaintiffs' attorneys to pinpoint specifically (1) who made the decisions regarding what developments would be included in the management plan, and (2) what scientific studies were used as the bases for these decisions. Atten- tion then could have been focused, at the hearing, on any shortcomings in the back-up data that came to light during the pre-hearing depositions. 15"Wilderness Watching With Dr. Gandt," Green Bay Post Crescent Sunday Magazine, Dec. 13, 1970, p. 7. 16Owen Phelps, Denmark, Wis. newspaper editor, personal interview, Green Bay, Wis., July 21, 1970. SOSAC failed to achieve the social change it sought through the medium of publicity. 208 effort involved] but [they came to believe that] it was the 17 only recourse left." At that time (October 25, 1968), they had neither a lawyer nor any scientists among their members.18 As to how SOSAC obtained its legal counsel, Dr. Gandt simply called the local law firm he had done business with on other matters--Smith, Smith and Roels of DePere, Wisconsin-- and asked for help. A junior member of the firm with an in- terest in the cause but with no previous experience in the field of environmental law, Fred A. Reiter, was given the 19 He assisted SOSAC in be- 20 case to handle as best he could. coming incorporated (only a few days before the hearing,) then sought experienced co-counsel. Arrangements were made for an attorney in Kalamazoo, Michigan, Michael O'H. Barron, to represent the plaintiffs at the seat of the U.S. District Court for the Western District of Michigan. Then the possi- bility of "importing" an attorney who had prosecuted at least one similar case elsewhere was explored. Attorney H. Anthony Ruckel of Denver, Colorado re- cently had served as one of the co-counsels for the 17Ibid. 18Ibid. 19"I got involved immediately prior to litigation. I grabbed my books and thought, 'Guess we'll have to go to federal court . . . '": Fred Reiter, personal interview, Green Bay, Wis., July 28, 1970. 20Dr. Robert Ditton, personal interview, Green Bay, Wis., July 21, 1970. 209 conservationist plaintiffs in the Parker v. U.S..timber- sale-in-potential-wilderness-area case before the U.S. Dis- trict Court for the District of Colorado. An avid conser- vationist and a Sierra Club member, he had drafted the Parker plaintiffs' 30-page "Memorandum Brief in Opposition to Defendants' Motions to Dismiss," dated June 12, 1969. This brief, concerned primarily with the question of "standing," was made available to SOSAC's attorneys. Be- cause of the similarity of the circumstances in the two cases and the shortness of time, 25 pages of this Parker brief were incorporated ver batim into the 29-page "Brief in Support of Plaintiffs' Motion for Injunction" submitted on behalf of "Dr. Jerry Gandt et a1.“ on December 2, 1969, over the signature of Michael Barron. Thus, SOSAC's attor- neys became aware of Mr. Ruckel's work. Fred Reiter, with only a few days to prepare for the hearing, put pressure on Dr. Gandt for experienced assistance, feeling that the "litigants didn't understand how tough it is to win a lawsuit": "Jerry [Gandt], you 21 The national board of promised me you'd get Ruckel!" directors of the Sierra Club responded to Gandt's plea for legal aid with a supportive resolution and with funds to perndt.Tony Ruckel to fly to Green Bay just before the Ihearing to help organize the plaintiffs' hearing testimony. 21Fred Reiter, personal interview, Green Bay, Wis., July 28, 1970. 210 As to how SOSAC obtained its scientific "expert witnesses," Dr. Gandt simply made telephone calls to ecolo- gists on the faculty of the nearby campus of the University of Wisconsin at Green Bay and asked for their cooperation. As plant ecologist Thomas B. Mowbray, a witness at the court hearing, put it, "[m]y involvement began when Jerry Gandt called me out of total frustration; he wanted to talk to an ecologist."22 Leisure sciences specialist Robert B. Ditton, similarly contacted, agreed to help but 23 He also found himself was "not highly motivated then." serving as a witness for the plaintiffs. Former U.S. Bu— reau of Land Management Director Charles H. Stoddard of Minong, Wisconsin, long a critic of the Forest Service plan for Sylvania, agreed to serve as a witness for the plain- tiffs, as did Sergej Postupalsky of Royal Oak, Michigan, Chairman of the Michigan Bald Eagle and Osprey Project spon- sored by the Detroit Audubon Society. This was the extent of the plaintiffs' preparation: Dr. Jerry Gandt, a dentist, having made some 20 trips into Sylvania since the spring of 1967, was armed with his color slides of the road construction and other recent develop- ments there and his Opinion of them. Former Federal bu- reau director Stoddard, on the basis of four trips into 22Tom Mowbray, personal interview, Green Bay, Wis., July 21, 1970. 23Bob Ditton, personal interview, Green Bay, Wis., July 21, 1970. 211 Sylvania, could compare the Sylvania plan to the master planning efforts made by Interior Department agencies. Tom Mowbray, Bob Ditton, and Sergej Postupalsky, with a total of four days' experience in Sylvania between them, could attempt to verbalize the concerns of an ecologist, a recre- ation planner, and an ornithologist with respect to the shortcomings of the Sylvania management plan. What the plaintiffs did ppE_have were the time and, more importantly, the money to conduct the kind of exhaus- tive pre-trial discovery proceedings that would have been needed to obtain the evidence as to whether or not lawful procedures, i.e., "due consideration" of Eli resources, had been followed by the Forest Service.24 Meanwhile, the federal defendants' case was being prepared through the combined efforts of the U.S. Depart- ment of Justice, the Office of General Counsel of the U.S. Department of Agriculture, and the Forest Service. Ottawa National Forest Supervisor Ralph Kizer, Ottawa National Forest Recreation Staff Officer Richard Guth, others on the professional staff at Ironwood, Michigan, and 24Cf., the extent of the discovery accomplished by the Parker v. U.S. (307 F. Supp. 685 [1969]) plaintiffs: "Good discovery defines the issues. We obtained a court order and subpoenaed the Forest Service's entire file on the [East Meadow Creek timber sale] subject. Fifteen house- wives volunteered to index the Forest Service material. We took depositions from Forest Service and other wit- nesses for seven days prior to the court hearing.": Tony Ruckel, personal interview, Denver, Colo., Aug. 20, 1970. 212 their secretaries devoted three weeks to assembling data on the case for U.S. Attorney Nelson Grubbe. Kizer and Guth worked until midnight many nights to compile the 25 Federal attorneys Grubbe and appropriate information. John Milanowski, from Grand Rapids, Michigan, were deter- mined to be prepared for any eventuality at the December hearing. The hearing itself turned out to be something of an anticlimax. The December 9-10 Hearing in Marquette At 1:30 p.m. on Tuesday, December 9, 1969, less than a month after the complaint in the case of Dr. Jerry Gandt, et al., v. Clifford Hardin, et a1. had been filed in Kalamazoo, Mr. Fred A. Reiter of DePere, Wisconsin and Mr. H. Anthony Ruckel of Denver, Colorado, for the plaintiffs, and Mr. John Milanowski of Grand Rapids, Michigan and Mr. Nelson H. Grubbe of Washington D.C., for the defendants, found themselves in open court before the Honorable W. 'Wallace Kent, Chief Judge, U.S. District Court, Western ‘District of Michigan, in the courtroom for the District's iNorthern Division at Marquette. Judge Kent had made it Iknown that he had only two days (actually one-and-a-half (days) in which to hear the case. This proved to be more than enough time for the plaintiffs to present all the evi- dence they had on the merits of their case. 25Ralph Kizer, personal interview, East Lansing, Michigan, Dec. 2, 1970. 213 That confusion reigned with respect to the purposes of the hearing, at least insofar as the plaintiffs' lawyers were concerned, is evident from these quotations from the 283-page "Transcript of Proceedings":26 MR. REITER: If it please the Court, in this hearing for declaratory judgment and for apreliminary injunc- tion, the plaintiffs are alleging that the Forest Ser- —l—" o u . a Vice Plan for the area . . . is arbitrary, caprICious and illegal . . . . . . . [Tlhis is a proper case for the entry of summary judgment and the granting of not only temporary, but -- THE COURT: Summary judgment? Is there a motion for summary judgment? . . . MR. REITER: I think summary assistance is our position, your Honor . . . .27 Judge Kent did not correct the plaintiffs' attor- ney following the erroneous Opening statement (above) on Tuesday afternoon. However, clarification did come during a discussion between opposing counsel and the judge early in the proceedings on Wednesday morning: THE COURT: . . . I don't see how you can take one study, a piece of what is used, and attack that and form a foundation for attacking the entire Plan, and that's what you're doing here . . . . MR. RUCKEL: Well, then, we will have to rely, your Honor, upon the Government through their witnesses supplying the documents that we need to see -- 26Available through Ruth G. Price, Official Court Reporter, United States District Court, Kalamazoo, Mich. 49005. 27Proceedings, pp. 4-6. 214 THE COURT: Then you will be in a bad way at the conclusion of your proofs. MR. RUCKEL: Well, that is true, your Honor, but we are here, I believe, your Honor, on a preliminary injunction proceeding. THE COURT: You are here on a hearing on the merits, and your counsel was advised of that, Mr. Ruckel. MR. RUCKEL: I was under the impression from my counsel we were here on a preliminary injunction. THE COURT: Mr. Barron and Mr. Milanowski were. advised in my office . . . that this hearing would in- clude not only the preliminary injunction but also the merits. Whether or not they advised you of that, I have no way of knowing. MR RUCKEL: I see. Well, I was not advised of that, your Honor, and I had no knowledge of that, and my co-counsel, Mr. Reiter, just informed me he had no knowledge of this. THE COURT: You have a recollection of it, Mr. Milanowski? MR. MILANOWSKI: That is correct, your Honor. THE COURT: All right. Mr. Milanowski as the United States Attorney, Mr. Barron as the local counsel for the plaintiff, and I think Mr. Curtis [Regional Attorney, U.S. Department of Agriculture Office of General Counsel], were all in my office in Kalamazoo, at which time I told them that this hearing would be on the preliminary injunction. MR. RUCKEL: Well, can we have a short recess, then, to reconsider our position? I think this is a rather drastic situation we are placed in. Both Mr. Reiter and I were under the impression this was a preliminary injunction proceeding.* THE COURT: I think you can proceed with your proofs, Mr. Ruckel, because we don' have time to take any such recess at this time.2 28Proceedings, pp. 124-126. 215 The 283 pages of hearing testimony can be summar— ized as follows: Leadoff witness Jerome O. Gandt (pages 9-82) quickly established the fact that he was familiar with the Sylvania area. He showed a large number of color slides and submitted into evidence several black and white photoé graphs of "changes that are physically taking place in this tract." He was unable to comment for the record, however, on the question of whether or not these allegedly adverse changes were the result of the implementation of the Sylvania management plan, because he had not been "qualified" as an expert witness in this area. He was shown to have no "special [vested economic] interest" in Sylvania, to be familiar with the old buildings and roads in Sylvania, and to be aware of the environmental safe- guards (sewage treatment, zoning, etc.) in the manage- ment plan. He expressed opposition to the Marsh Lake timber sale and to proposed developments "inviting over- use," including the Indian Lake and Clark Lake drive-in campgrounds, the spur road to within a quarter-mile of Whitefish Lake, and the new road from Long Lake toward Indian Lake (the "Whitefish Lake road"), to which he in- dicated he had previously registered his objection with the Forest Service. He said he knew that resource studies had been done, but expressed fear that the studies made 216 regarding the impact of envisioned recreational use of Sylvania were inadequate. The plaintiffs got nowhere with their "no public hearing" complaint: the [DR. GANDT:] . . . [W]hat impresses me with the history of this Plan is that it has never been sub- mitted for public hearing . . . . THE COURT: . . . Do you claim that a public hearing is required by statute, Mr. Reiter? MR. REITER: No, your honor. THE COURT: All right, [Dr. Gandt . Go ahead with what you know about [the Plan].2 This evidence pertaining to the "laches" issue-- timeliness of the lawsuit--went into the record: (MR. GRUBBE:] Did you ask the Forest Service for any information as to what they had done preceding this Plan in the way of studies? [DR. GANDT:] Oh, yes . . . [Slince I wrote this letter in Februapy, 1969 . . . I have received TDr. Voss' plant survey, the University of Michigan's Sylvania prospectus, a Gogebic County Board resolu- tion,] and I have a letter of explanation regarding how this Plan was formed; but I have seen very little research or study in any of the thigas that were sent to me by the Forest Service . . . . [THE COURT:] Dr. Gandt, this Sylvania Recreation Area Management Plan marked Plaintiffs' Exhibit 1, (where did you obtain this? [DR. GANDT:] That particular copy I received from the Regional Forester, George S. James . . . . 291bid., p. 57. 30Proceedingp, pp. 58-59. 217 [THE COURT:] When did you obtain this? [DR. GANDT:] Approximately March 1969.31 [THE COURT:] Has the activity described in the Sylvania area varied substantially from what is set forth in this Plan? [DR. GANDT:] I believe it has. [THE COURT:] In what manner? [DR. GANDT:] Because the Plan has many . . . safeguards which I don't believe are being implemented . . . [Plortaging wheels . . . are used on the trails and result in . . . erosion. And I believe that the silting of bogs throughout the road begag put in is not in the spirit of this plan . . . The second witness, and the only witness for the defendants, was the Honorable Philip E. Ruppe, Member of the U.S. House of Representatives from the 11th District of Michigan, the district that embraces the Upper Penin- sula of Michigan and several counties in the Lower Penin- sula. Congressman Ruppe, who had visited Sylvania and read the management plan, agreed that there would be some local economic benefit to be derived from a wilderness pre- servation approach to the management of Sylvania, and that nonresidents of Michigan, as well as residents of Michigan's Upper Peninsula, had an interest, or a stake, in what hap- pened to Sylvania. His testimony (pages 83-113) dealt 31Probably April 30, 1969; see p. 139 supra. 32Proceedings, pp. 75-77. 218 primarily, however, with the depressed economic condition of the local area, the early promises that had been made to intensively develop Sylvania to the economic advantage of the surrounding communities, and the disappointment of the local people with the reduced scale of develOpment provided for in the 1968 management plan. Said the Congress- man: I do not believe [Congress] would have authorized it or appropriated the money on any other basis [than the 1964 study's package of proposed developments], in view of the fact that the Gogebic County leadership, the board of supervisors, acquiesced in the purchase of the prOperty, knowing there would be a substantial or heavy tax loss . . . of over $40,000 to the Govern- ment . . . . I think it is incumbent upon the Federal Govern- ment, and particularly the Forest Service, to carry through with the Plan that they have, or through with the intent as originally outlined to these people . . . . At the conclusion of Congressman Ruppe's testimony, the hearing was recessed until Wednesday morning, Decemr ber 10, at which time Professor Thomas B. Mowbray of the University of Wisconsin at Green Bay took the witness stand. A plant ecologist, Mowbray criticized particular details of the Sylvania management plan, describing the term "vegetative cover manipulation" as "jargon" for log- ging practices, calling the proposed selective logging of big trees to maintain a big tree environment "trickery," and asking how the Forest Service intended to achieve the :management plan's stated goal of maintaining the existing ‘variety of tree species in the absence of any quantitative 219 compositional study of the tree and other plant species there. Mowbray characterized the plant ecology of Sylvania as "somewhat unique": . . . I think that Sylvania represents one of the few remaining virgin stands of hemlock-northern hand- woods forest . . . . [Slhortly to the west of Sylvania hemlock drops out as a major dominant species, it doesn't get into Minnesota, and within Minnesota yellow birch, which is also dominant in the [Sylvania] tract, becomes less significant. So I think it might be considered one of the most westernmost extensions of the hemlock-northern hardwoods forest. [MR. RUCKEL:] As a plant ecologist who would be charged with helping to make some sort of management plan for this area, having in mind recreation, what type of studies would you inaugurate for such a plan? [DR. MOWBRAY:] Well, I think the first thing that I would recommend would be to carry out a complete quantitative vegetative study of Sylvania . . . because without this firm basis we cannot Show what changes have been made in the composition . . . . [Bleyond this there should be several studies done to try to show the interrelationship between excessive recrea- tional use and changes in the composition. Once you have this . . . you can make several related studies trying to show the impact of all aspects of recrea— tion on the entire system . . . .33 Professor Mowbray's testimony was truncated by U.S. Attorney Grubbe's objection, sustained, to the effect that: this line of testimony . . . relates to the area in which the Congress has given the Forest Service com- plete discretion to exercise their expertise in the field of forest management and land management. This goes far beyond the sc0pe of review provided by Con- gress on matters relating to administrative activity such as this Plan . . . . Both the designation of the area and the standards that are applied are mat— ters on which experts, as we see here, can differ, 33Proceedings, pp. 129-130. 220 and they are matters of fine technical decisions in which the Court should not engage in weighing of these matters.34 The fourth hearing witness--the third for the plain- tiffs--was Professor Robert B. Ditton, also a member of the faculty of the University of Wisconsin at Green Bay. Dr. Ditton described his field of expertise, "leisure sciences," as "recogniz[ing] the relationship between people's atti- tudes, people's perception, and their leisure behavior." Describing Sylvania from his perspective, he stated: . . . [Tlhe area is best suited to a wilderness use, that of canoeing, hiking, non-intensive uses. And I say this from an understanding that peOple . . . are attracted to the area for the certain environmental qualities there, and these environmental qualities are reflected in their behavior . . . [Flrom a trend study done by the Bureau of Outdoor Recreation, we are find- ing that between the present time and 1980 wilderness uses, along with general water uses, are projected to increase-~the demand is projected to increase drasti- cally, and we are finding that the amount of effective supply, or the amount of areas where this participa- tion can be expressed, where the wilderness experience can be had, is dwindling. So I feel that this area would be an attraction to this user group, an attrac- tion which could not be minimized because of the num- ber of areas that are presently available and the in- creasing demand for this type of recreation . . . .35 Dr. Ditton did not fare well at the hands of the Court, either: THE COURT: . . . [Ylou don't have any base for forming an Opinion . . . as to whether the change in 34Ibid., p. 120. 351bid., pp. 146-148. 221 character [of Sylvania, through development] would cut down on the number of people who would be there because you don't know how many were attracted by any particular facet of it. . . . I might say, Mr. Ruckel, that broad statements without foundation mean absolutely nothing to this Court. We are in the habit of relying on evi- dence and not opinions based on a lack of knowledge.36 Next to take the stand for the plaintiffs was Charles H. Stoddard of Minong, Wisconsin (pages 151-208 in the Proceedings). Director of both the U.S. Department of the Interior's planning staff and its Bureau of Land Manage- ment under Secretary Stewart Udall, Mr. Stoddard had writ- ten his master's thesis on the management of old-growth northern hardwoods, had been employed for five years by the research branch of the Forest Service, and had written a book entitled, Essentials of Forestry Practice. He testi- fied that, in his capacity as Secretary Udall's staff direc- tor, he had reviewed large numbers of management plans to determine the qualifications of areas for inclusion in the national park system and other systems and had seen manage- ment plans that were "much more detailed" than the Sylvania plan.37 He stated before the Court that he found "serious gaps and deficiencies" in the Sylvania management plan: 36Ibid., p. 150. Both Mowbray's specific comments on "fine technical decisions" and Ditton's "broad state- ments" were unacceptable to the Court. The burden of proof on the plaintiffs became well-nigh insurmountable. 37Ibid., p. 182. 222 . . . The unique aspect of [Sylvania] is that we do have a fragment, we have a rare remnant of what the whole region looked liked, at least the northern hard- wood—hemlock portion of the region looked like, prior to white man's entry into the region. For this reason it is quite a magnet. It holds great potential in drawing visitors of the kind who go to Williamsburg or to some old cultural--Independence Hall-—this is part of our frontier heritage, and for this reason I think that we have the problem of making it available for many people to see without ruining the thing they come to see . . .33 . . . [Sylvania] is in the northern hemlock-hard- wood area. Up in northern Minnesota [the Boundary Waters Canoe Area] it is pine and spruce and balsam fir and white birch, here it is hemlock, yellow birch, sugar maple, basswood, red oak; a different situation . . . [T]his Plan . . . may result in such heavy overdevelopment that the area will no longer have its magnetic attraction to people in the future. In other words, there is a short-run economic development that may take place here, but the long-run Opportunities may be lost because of overuse, and our contention is that if the users were Spread around farther away from the area, and scenic roads were built, limited access, and the sort of pioneering wilderness concept feel was maintained, it could maintain a long-term attraction to many people.from all over the country . . . .40 . . . There is no mention in the Plan itself of scenic roads, which are one of the basic concepts of recreational development. The roads that are under- way now have hundred-foot rights-of-way which have eliminated very largely the closed scenic value of Sylvania . . . .41 381bid.. pp. 167. 39Ibid., p. 192. 4°Ibid., p. 188. 4lIbid., p. 157. 223 . . . There are other matters, plans for large trailer camps, boat launching ramps, there is a beach development already underway, and there are other plans which tend to concentrate intensive traditional uses in the area which has been established as a relatively fragile ecological area. In other words, the kinds of uses that are planned would have to be attended with litter problems, overuse problems, waste problems, all which can affect the quality of the area, as well as overuse which could result in siltation of the waters, and one43f the objectives is to maintain water quality , J. . . . The problem that develops when you encourage overnight camping by putting in developed facilities is that when you reach capacity the pressure develops for more overnight camp sites--and this is a result gm of my own experience in the Bureau of Land Management-- ' that it is extremely difficult to resist building three more camp sites, and then three more camp sites, be- cause you have the Congressman and the pressures of the local constituency who are interested in more devel- Opment, and with this entering wedge that is already begun, the chances of maintaining the wilderness envi- ronment are extremely tenuous . . . .43 . . . There are four management zones indicated in the Plan. They are not clearly defined on the ground. They are not shown as fixed boundaries. There is no assurance in the Plan that they will be maintained over time or maintained under pressure of use, that the general forestry area which provides for logging will not be expanded. The commitment to maintaining the wilderness character of the area is not particularly precise within the Management Plan itself . . . .44 . . . I would like to see the road standards changed and made more precise, the zoning system made more precise and delineated, that there is a need for moving some of the intensive recreational develOpments which will tend to force uses in this area, that there 42Ibid., p. 163. 43Proceedings, p. 175. 44Ibid., p. 164. 224 is a need for spelling out specifically in the forestry program silvicultural techniques that will be used in the general forestry area, so that if we assume that there will be logging in this area, that the logging will be of the highest caliber and quality that is possible to practice . . . .45 . . . [T]here is a need for an analysis and a re- appraisal of this Plan . . . 46 While accepting Stoddard's testimony as that of an expert witness qualified to comment on the adequacy of rec- reation area management plans, Judge Kent repeatedly ob- served during the proceedings that administrative discre- tion was necessarily involved in the development of such plans: Mr. . . . [T]he preparation of a plan of this nature is a matter of judgment and discretion in the pe0ple pre- paring the plan, on which there can be differences of opinion[.]4 . . . [I]t is basically a matter of judgment where you might have one judgment of it and the Forestry Service [sic] people another[.] . . . [W]hen we get it all boiled down, the whole thing is a matter of judg- ment for the people preparing the p1an[.]48 At page 203 in the Proceedings, Judge Kent asked Stoddard: It is a matter of judgment, isn't it, as to whether yours should prevail or somebody else's? 451bid., p. 164. 461bid., p. 203. 47Ibid., p. 186. 48Ibid., p. 194. A. $1 225 [MR. STODDARD:] To broaden the criteria, to look at some alternatives, rather than saying this is the final Bible and the public shall take this and, you know, by the all-powerful bureaucracy. [THE COURT:] Of which you were formerly a part? [MR. STODDARD:] I was, and I know how it works. During Stoddard's cross-examination, following a series of questions directed by Judge Kent to the witness exploring the possible application of the Wilderness Act of 1964 to the Sylvania area, counsel for the plaintiffs withdrew their allegations under the Wilderness Act: MR. RUCKEL: Your Honor, if I may briefly be heard and relieve your Honor's mind, it has been our intention to withdraw the allegations under the Wilder— ness Act at the conclusion of my presentation, but in view of the fact-- THE COURT: That is an interesting sort of an ob- servation. If it had been done first we could have quit worrying about the Wilderness Act, couldn't we? MR. RUCKEL: Yes, your Honor, and I apologize for not Opening this morning and informing you of such.49 Prior to this development, Judge Kent had leaned heavily on the fact that Congressman Ruppe appeared to be opposed to a wilderness designation for Sylvania, stating that the Congressman's attitude made chances of such a designation “almost nonexistent": THE COURT: . . . [T]o make it a wilderness area within the meaning of the Wilderness Act would re- quire it, to put it bluntly, would require concurrence 49Ibid., p. 180. n h, 226 of the congressman from that area, wouldn't it, if you are going to get it through? [MR. STODDARD:] That would be the politics. THE COURT: As a practical matter, that is what happens? [MR. STODDARD:] That's right. THE COURT: So if the congressman from the area is not in accord with its becoming a wilderness area with- out development for use by the public except on a very limited basis, the chances of putting it through the Congress are almost nonexistent, aren't they? [MR. STODDARD:] This is correct.50 Following Stoddard's lengthy testimony, counsel for the plaintiffs called Sergej Postupalsky to the stand. The purpose of calling this witness (see pages 209-223 of the Proceedings) was to establish the fact that the bald eagles nesting in the Sylvania area were among the last of their species left in the "lower 48" states and that, therefore, these eagles should-be given more protection in the Sylvania management plan.51 5°Proceedings, pp. 178-179. 51"Sergej Postupalsky of the University of Wisconsin Department of Wildlife Ecology reports only nine of a low of 22 pairs of Lower Peninsula bald eagles were successful in raising a total of 11 eaglets last year, the same as 1969. In the Upper Peninsula he says 62 pairs were located, in- cluding three non-nesting pairs, and 28 pairs raised 42 eaglets . . . . He says the 84 pairs raised a total of 53 eaglets or 0.63 young per pair . . . [blut this does not herald a comeback for the birds, Postupalsky points out. To maintain a stable pOpulation, eagles must produce 0.9 to 1.1 young per pair per year.": "Motorist Kills Eaglei'The State Journal, Lansing, Mich., April 24, 1971. 227 The plaintiffs' attorneys were unable to qualify this witness as an expert on the subject "[blecause," said the judge, "he stated that he was studying environmental effects on eagles [for a doctoral dissertation at the Uni- versity of Wisconsin] and necessarily still being involved in the program, might well have a tendancy to change his 52 opinions." Neither were they able to use the Endangered Species Act to good effect, because, as implemented, its protective provisions applied only to the "southern" bald eagle--not to the "northern" bald eagle subspecies inhab- iting Sylvania.53 The only witness left to be called to testify was George 8. James of Milwaukee, Wisconsin, Regional Forester, Eastern Region, U.S. Forest Service. As a witness for the plaintiffs (pages 224-252), he was less than helpful: I can't recall the total number [of studies of a scientific nature done prior to the approval of the Plan] . . . . We have an organization that is in- volved with the Ottawa National Forest, we have a staff in Milwaukee. They were charged with the re- sponsibility of designing the entire study program. They carried through, they reported, and it was built into the Plan . . . . A soil survey, a water quality survey, an extensive study of the timber re- sources, [and] a cooperative study of the fish 52Judge Kent, Ibid., pp. 279-280. In other words, he didn't have his Ph.D. degree yet, so he couldn't be an "expert." Counsel for the defendants objected to his testimony on the basis of his lack of familiarity with the Sylvania management plan. 53Federal Register, Vol. 34, No. 46, March 8, 1969, pp. 5034—35. 228 environment [were conducted] . . . . I am not in a posi- tion to explain [the soil study] . . . . [Nlot all the reports of studies were examined by me . . . . [W]e have a Deputy Regional Forester who is responsible for coordinating the design and tying all of the . . . stud- ies together into a composite plan . . . . At this point Judge Kent observed, "I think you got "54 the wrong witness. Examination of James by counsel for the plaintiffs was completed shortly thereafter. Under cross-examination by Nelson Grubbe, the re- gional forester offered this version of the early involve- ment of the Forest Service in the Sylvania project: This [1964] plan resulted from a resolution of the board of supervisors of Gogebic County in 1963 to the members of the Michigan Congressional delegation asking the Forest Service to study and report on the opportunities for the Federal Government to purchase Sylvania. A member of the delegation in turn asked the Chief of the Forest Service, who passed the re- quest down to the . . . Supervisor to start the study, and it was completed in the fall or winter of 1964. It is rather a full, intensive multiple-use develop- ment program as suggested at that time to build up the economic base of the western end of the Upper Peninsula of Michigan through increasing recreation use in the timber management activity [sic]. At this time we lack[ed] detailed information because we did not have permission to stay on the tract too long to get the kind of detailed factual information that was necessary for a more accurate report. Reference was made during this cross-examination to a memorandum dated.August 4, 1966, placed in evidence as Exhibit B—2, which was described as setting forth "the 54Proceedings, p. 229. Obviously, the Deputy Re- gional Forester shouid have been called on to testify instead. 55 Ibid., pp. 235-236. 229 management development of the Management Plan for the Sylvania area" and as listing "all the activities and jobs which must be done," including "the protective features for the concept of peOple." This memo was further described as including a list of the various specific studies performed in this connection. Also placed in evidence were a three- page-long list of the names of Forest Service personnel who had contributed in one way or another to the Sylvania management plan and a list of the names of the participants in the September 1968 ad hoc advisory meeting. Concerning the ad hoc advisory group, Judge Kent asked, "Did you ap- point those, Mr. James?" [MR. JAMES:] Yes, sir. [THE COURT:] And these peOple did carry out the purpose for which you just described the ad hoc com- mittee? [MR. JAMES:] Those who are on this list reported. [THE COURT:] You did receive advice and sugges- tions from them? [MR. JAMES:] At that meeting, yes. When additional lists of persons outside the agency "who actually had input into the development of this Plan" were submitted, the judge asked, "And they did make sugges- tions to you?" [MR. JAMES:] That is correct. [THE COURT:] And did you consider them? 230 [MR. JAMES:] They were considered.56 As a finishing touch, Mr. Grubbe elicited from Mr. James affirmative responses to these helpful questions: [MR. GRUBBE:] Mr. James, did you in the develOp- ment of this Sylvania'Plan give careful consideration to all the relative values of the natural resources on and near the Sylvania area? [MR. JAMES:] We did . . . . [MR. GRUBBE:] And did you make an attempt to get a harmonious relationship between the relative re- sources involved so that it would be a harmonious use of the relative values of the natural resources with the particular use suggested in the Plan? [MR. JAMES:] We did. [MR. GRUBBE:] And in your opinion does the Manage- ment Plan best meet the needs of the American people? [MR. JAMES:] It does.57 Plaintiffs' counsel, on redirect, had little of consequence left to ask the regional forester, but Judge Kent did: [THE COURT:] Is this Plan satisfactory to every- body who participated in furnishing information for the formulation of the Plan? [MR. JAMES:] It is satisfactory to most of them. [THE COURT:] It is not satisfactory to all of them? [MR. JAMES:] No, because in the ad hoc advisory meeting there were some people who were invited who had the privilege and the opportunity to react, and 56What other answer could have been expected? 57 witnesses. Cf. the judge's treatment of SOSAC's expert 231 they made suggestions, some of which were accepted, others not accepted. [THE COURT:] And when was this Plan . . . first published? [MR. JAMES:] It was approved in December 1968, and by the time we had enough COpies for mass distri- bution, it was well over into January or February of this year. [THE COURT:] Do you have any idea when the plain- tiff Dr. Gandt first obtained a copy? [MR. JAMES:] Yes. We sent 058 to Dr. Gandt in April or May of this year . . . . [THE COURT:] So that since April or May he has had available to him the information contained in this Plan as to what roads would be cut and where they would be cut? ' [MR. JAMES:] That's right . . . . [THE COURT:] And was the development map which appears in this Plan given to Dr. Gandt in April or May? [MR. JAMES:] That's right, sir . . . . [THE COURT:] Mr. James, did Dr. Gandt discuss this Plan with you after he had a COpy of it? [MR. JAMES:] NO . . . . [THE COURT:] Do you know whether he did with any :members of your staff? [MR. JAMES:] Yes. We asked Mr. Kizer, Supervisor, to make contact with Dr. Gandt early in the year to explain the Plan . [THE COURT:] This was early in 1969? [MR. JAMES:] That's right. [THE COURT:] And has Dr. Gandt ever made any effort to reach you or talk with you about this Plan? 59Actually, April 30, 1969. 232 [MR. JAMES:] Very recently, yes . . . . Within the last month. [THE COURT:] Did he at any time between January or February, when this Plan was made available to him, and let's say the first of November, make any effort to talk to you? [MR. JAMES:] NO, sir. Following this exchange, the plaintiffs' case rested.60 The counsel for the defendants moved for a mo- tion to dismiss the complaint, submitting that the plain- tiffs had "failed to prove that the Forest Service violated any law in the development of this recreation Plan [and] that they have not made out any case for equitable relief." Continued Mr. Grubbe: The Plan was in Dr. Gandt's hands early in 1969. He waited and watched the road being built . . . . His complaint at this time is very untimely . . . . [I]f he had any rights whatsoever from an equitable standpoint when he got this [plan] and a reasonable time thereafter, at least by mid-summer, I think if he is going to bring an equity proceeding that would have been the time to do it, not now when we have contracts outstanding . . . . [T]he request which the plaintiffs ask certainly would absolutely stop the Forest Service . . . would stop all meaningful management in this area . . . . This would be an injunction against which there is no statutory authority. It would be stopping the Government in its tracks in the same way the Court talked about in the Larson case . . . . [Dr. Gandt] must have some legally protected interest to have standing to sue [but] he admitted to us on cross that he had no different interest in Sylvania than anybody else's . . . . 60The judge could not be interrupted by counsel for the plaintiffs at this point, but Dr. Gandt's attempts to communicate with the Forest Service over an eight-month period were not very adequately described by this exchange. 233 All that was left to do at this point was for coun- sel for the plaintiffs to make his concluding remarks. Tony Ruckel first touched on the matter of the timeliness of the complaint: [I]t is extremely difficult for the citizen or the person affected to know when the irreversible . . . decision is made. It is usually the evidence on the ground rather that the evidence of events in an admin- istrative hierarchy that triggers the response of the citizen and makes him question whether the laws of his government have been properly applied in the given situation . . . . [T]o hold . . . that the citizens have to hit that exact moment [just before an irre- versible decision is made] is to hold that they would never be able to come into court . . . . [D]uring this ten-months time the plaintiffs consistently and con- tinuously contacted various members of the Forest Service. THE COURT: That is not in the record . . . . MR. RUCKEL: Well, your Honor, I believe that Dr. Gandt referred several times to his efforts. THE COURT: Your argument is that the plaintiffs constantly talked with representatives of the Forest, Service, and I am telling you it is not part of the record . . . . [I]s there anything to indicate that [Dr. Gandt] ever asked for a change in the Plan and that he was told that it would not, or might be, or might not be changed? I don't recall that in his testimony. MR. RUCKEL: No, your Honor, I don't recall that either. Before winding up his remarks, Ruckel withdrew any claim.under the Endangered Species Act, leaving only the bhiltiple-Use Act's provision requiring that "due consider- .ation . . . be given to the relative values of the various :nesources in particular areas" as the basis of his clients' 234 61 . . . . "ProfeSSIOnally there were omiSSions in complaint. this [plan] which should have been in there," he concluded. A short recess was taken, after which the Court's Opinion was given from the bench, to wit: It is hereby ordered, adjudged and decreed that plaintiffs' Motion for a Preliminary Injunction is it hereby denied, and Plaintiffs having failed to produce sufficient evidence to sustain the allegations in their Complaint, It is hereby ordered, adjudged and decreed that the Complaint is dismissed and defendants shall have their costs of this action. W. Wallace Kent, Chief Judge, United States Dis- trict Court. The Opinion of the Court Final disposition of the Gandt v. Hardin case was made on December 11, 1969 with the delivery by Judge Kent of his formal "Opinion of the Court." As SOSAC was to em- phasize later, the plaintiffs did win their "standing" argument. This was due, in large measure, to the help they had been given by the Parker v. U.S. plaintiffs, attor- ney Tony Ruckel, and the Sierra Club. The plaintiffs lost their case, however, on the merits. They were unable to 61"My instructions were to cut the losses.": Tony Ruckel, personal interview, Denver, Colo., Aug. 20, 1970. Plaintiffs realized it would be better to drop the Wilder- ness Act and Endangered Species Act issues than to push them and get adverse decisions on them. 235 prove arbitrary and capricious action on the part of the Forest Service. Additionally, the plaintiffs were charged with laches (untimeliness in the filing of their complaint).62 The complete text of the Opinion is included in Appendix B of this report. Highlights of the opinion are provided herewith: Basically, the claim of the plaintiffs is that the defendants have acted arbitrarily and capriciously by adopting a plan without full and prOper consideration of all the factors required by the Multiple-Use Act . . . . [T]his suit in reality is against the govern- ment of the United States, in an effort to stop the government from implementing Management Plan Exhibit 1 . . . . . . . Congress [in the Multiple Use Act] intended to make certain actions on the part of the Secretary of Agriculture mandatory in determining proper manage- ment of national forests. And it should be noted that there is no express provision in the Act which pre- cludes judicial review or which specifically commits agency action under the Act to complete agency discre- tion . . . The Congress was not enacting a permissive statute, but rather adopted a mandatory statutory list of factors to be considered in the development of the national forests. . . . [T]he Secretary's actions, when they seem to be in contravention of the Act, are subject to judicial review . . . . [Blased upon the authorities which have been reviewed [Flast v. Cohen, 392 U.S. 83; Jenkings v. McKeithep, 395 U.S. 411; Utility Users League v. FPC, 394 F.2d 16; Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608; Road Review League, Town of Bedford v. Boyd, 270 F. Supp. 661], this Court has reached the conclusion that these parties plaintiff have standing in this court. . . . [On] the issue as to the timeliness of the filing of plaintiffs' action [citing Abbott Industries v. Gardner, 387 U.S. 136; Southern Pacific Co. v. Boqert, 250 U.S. 489; Penn Mutual Life Insurance Co. v. AustipJ 168 U.S. 685; and an unnamed case at 189 F.Supp. 821: . . . the plaintiffs are in rather dire shape. 2See page 277 infra. 236 . . . [T]he challenge of the plaintiffs is not to the defendants' failure to consider the factors; rather, the challenge is as to the decision reached by the de- fendants after considering the factors, and that, ex- cept as it may be arbitrary and capricious, is not for this Court to review. There is no evidence in this case that any action taken is arbitrary or capricious. That would be sufficient to decide the case, but in addition this Court is completely satisfied . . . that if there ever was anybody who was guilty of laches, it was the plaintiffs in this case, and particularly the Number One and apparently principal plaintiff, Dr. Jerry Gandt . . . . To permit the government to enter into these contracts . . . without in any way challenging, so far as this record shows, the actions, it appears to this Court to be laches . . . . . . . [B]asically, . . . the plaintiffs have not sustained the burden of proof . . . . [T]o permit the case to go on and substitute this Court's judgment for the judgment of the Forestry Service [sic] would be a clear case of arbitrary action and abuse of dis- cretion on the part of the Court . . . . [T]he applica- tion for an injunction is denied and the complaint is dismissed . . . . Jerry Gandt had had his day in court. The implica- tions of this decision, particularly with regard to the status of the 1968 management plan for the Sylvania Recre- ation Area, are discussed in Chapter X. CHAPTER X SYLVANIA: EPILOGUE The loose ends of the Gandt v. Hardin story can be tied off with summaries of (1) how the mass media covered the hearing, (2) what SOSAC has done since the hearing, (3) the policies of other groups regarding the Sylvania plan, (4) the past-hearing posture of the Forest Service with reSpect to the Sylvania management plan and its im- plementation, and (5) the broad legal implications of the Gandt v. Hardin decision. District Court Decision Widely Publicized The Milwaukee Journal, on December 10 and 11, pro- vided its many readers with a straightforward account of the Gandt v. Hardin hearing ("Federal Judge W. Wallace Kent Wednesday refused to grant a temporary injunction . .-. ."), while the Marquette, Michigan Mining Journal, on December 11, described the judicial resolution of the Sylvania conflict in colorful language: An attempt to thwart U.S. Forest Service plans for development of the Sylvania Recreation Tract was shot down . .-. [i]n a sharply worded decision . . . . Judge Kent was biting critical of the plaintiffs' failure to begin legal action until Nov. 10 . . . . 237 238 The United Press International wire service report that "[a] conservation group headed by a Green Bay, Wis., dentist . . . lost its battle to keep . . . Sylvania . . . a virgin forest " also quoted Judge Kent's Opinion that he personally would prefer to see outboard motors and snow- mobiles kept out of Sylvania.l A feature article, "Sylvania Battle Hailed" by Paul G. Hayes in the December 21, 1969 edition of the Milwaukee Journal,concluded: Citizen conservationists believe they won signif- icant victories in their recent fight to block devel- Opment of Upper Michigan's Sylvania wilderness--des- pite the judge's dismissal of their case. The "victories" alluded to were the "standing to sue" and "legal basis for judicial review" issues. Sup- port for Judge Kent's decision appeared in the editorial column of the Marquette Mining Journal on January 2, 1970. ("When it comes to utilization of the nation's land and forest resources, mixing business and pleasure makes sense.9) and in an article prepared for publication in the Michigan United Conservation Clubs' tabloid magazine, Michigan Out-of-Doors, by Congressman Philip E. Ruppe.2 lSee "Virgin Forest Fight Lost: Court Denies Sylvania Challengers," The State Journal, Lansing, Mich., Dec. 11, 1969. 2Mailed to MUCC by the Congressman's office on Dec. 31, 1969, the draft article emphasized the development "commitment" made to the peOple of Gogebic County, described the 1968 management plan as providing "an excellent balance 239 "SOSAC" Becomes "Wilderness Watch“ "In the wake of partially successful legal action against the U.S. Forest Service," stated the January 12, 1970 SOSAC press release, "the Save Our Sylvania Action Committee today announced a major reorganization of it- self. Most important feature of reorganization was the formation of a special scientific information branch of the group, which will have equal status with the already existing executive branch." Dr. Robert B. Ditton later described this step as follows: Following the court action, I joined the group as Director of Scientific Information Staff and helped in a reorganization plan. The old Save Our Sylvania Action Committee, Inc. was officially laid to rest because of our broadening concern for Forest Service holdings in the Great Lakes region--our prime con- cern was still Sylvania, however. SOSAC, Inc. was officially incorporated under Wisconsin State Law. Our other chapters in Minnesota, Michigan and Illinois are ad hoc groups not incorporated under their partic- ular state laws--they are tied to the main office here in Green Bay. between the need to develop the tourist potential while at the same time protecting the natural scenic qual- ities of the area," and stated that Judge Kent's decision "affirmed the right of the Forest Service . . . to use the land as they saw fit . . . ." "The full development and public use of Sylvania has always had the support of the people of Northern Michigan, and now it has the sup- port of law," the Congressman's draft article concluded. Cf., the Congressman's supportive statement with regard to the designation of the Seney, Huron Islands, and Michi- gan Islands National Wildlife Refuge Wilderness Areas in U.S., Congress, House, Committee on Interior and Insular Affairs, Designation of Wilderness Areas, Hearings before the Subcommittee on Public Lands of the Committee on Interior and Insular Affairs, House of Representatives, 9lst Cong., 1969 and 1970, pp. 221-228. 240 Our new organization [was] settled upon in January, 1970 . . . . J. Gandt is executive director and as such directs the administrative branch which includes a political affairs branch, staff of writers, legal council, membership, find-raising, newsletter and information materials and public relations. As Director of Scientific Information Staff, I have several responsibilities: (1) build up as large a group of diversified environmental specialist from the natural, physical, and behavioral sciences; (2) make their expertise available by our chapters and main office in Green Bay; (3) secure pertinent information for the staff from government agencies; (4) compilate their findings and recommendations into reports, proposals and position papers and . transmit to agencies (I have a staff member respon- sible for this function); (5) finding new resource mismanagement situations and making the initial contact so they know from the start what kind of a group we are. My job could be summed up with the word "whip" and is made fairly easy because of an excellent division of labor within the Scientific Information Staff. Documents published by SOSAC after the court hear- ing included a "Status Report on Sylvania"4 and the group's 3Robert B. Ditton, personal letter to Marion M. May, East Lansing, Mich., Nov. 6, 1970. The Green Bay Press- Gazette's January 12, 1970 story, "Sylvania Unit Branches Out To New Conservation Area," noted that "seven members of the University of Wisconsin-Green Bay faculty were named to [SOSAC's] scientific information branch [and] several UW- GB men have beem appointed to the executive branch [of SOSAC]." See John Fisher, "Survival U is alive and burgeon- ing in Green Bay, Wisconsin," Harper's Magazine, Vol. 242, No. 1449, Feb. 1971, pp. 20-27; see also, Save Our Sylvania Group Launches Sale of Buttons," Green Bay Press- Gazette, Feb. 22, 1970. Ditton believes representatives of the forest pro- ducts industry have approached administrators of the Uni- versity of Wisconsin at Green Bay in an attempt to have him fired (personal interview, Green Bay, Wis., July 21, 1970.) 4"One result of our action is that conservation groups, such as SOSAC, can now take the Forest Service to court, when it becomes necessary in the best public inter- est. . . . Our fight has really just begun . . . . 241 first membership promotion brochure.5 SOSAC's scientific information staff directed letters to Edward P. Cliff, Chief of the Forest Service, asking for the agency's posi- tion of the National Timber Supply Bill,6 and to Regional Forest George James, one letter requesting information on how the water quality of Sylvania's lakes was to be mon- itored,7 another demanding an itemized description of the academic training and other professional qualifications of each of the "recreation planning specialists on re- gional or district staffs." 5"Save Our Sylvania Action Committee invites you to join in the fight to save a unique wilderness area . . . . A choice must be made--between wilderness for America and the few who care or no wilderness at all." Dues were set at $5.00, $2.00 for students. 6 Letter from Michael Morgan, Co-chairman, SOSAC Ecology Advisory Committee, Jan. 29, 1970. 7Letter from Paul E. Sager, limnologist, UW-GB, Jan. 29, 1970. 8Letter from Robert B. Ditton, Jan. 29, 1970. Ditton feels that his campaign to win Forest Service em- ployment of recreational planners with something other than forestry backgrounds has had positive results: "A new set of personnel standards has been drafted by the U.S. Forest Service that opens its ranks to a much broader group of college-trained specialists. Opening this 'closed shop' was a SOSAC accomplishment." Personal interview, East Lansing, Mich., Oct. 21, 1970. Included in a Feb. 11, 1970 follow-up letter on this subject to Regional Personnel Officer Jack Heintzelman were Dr. Ditton's observations on the effect of the court decision: “. . .Gandt vs. Hardin . . . did not judicially determine the adequacy of the Sylvania Management Plan [despite what Federal Attorney. E. J. Curtis may have told you]. . . . Our failure to prove arbitrary and capricious activity on the part of the Forest Service can hardly be construed by your agency as a decision that the plan is adequate or a good one . . . ." fill 242 A March 24, 1970 SOSAC press release announced the formation of a Michigan chapter of the Save Our Sylvania Action Committee headed by Donald Quinn of Escanaba.9 SOSAC called on its supporters to "write your Congressman and Senators calling for a total moratorium on the devel- Opment of Sylvania pending further investigation."10 9Robert Estabrook of Marquette and Bruce Bowersox of Vicksburg were listed as regional vice-chairmen for Michigan. The March 28 Ironwood Daily Globe carried the story. SOSAC's press release concluded by quoting Quinn as saying: "Like the original SOSAC group, our chapters will be action orientated [sic]. We will do whatever necessary within our means to insure the best recreational use_of prime wilderness areas--even if it means we have to resort to court action." 10"What Can You Do To Save The Sylvania Wilderness Area . . . ," SOSAC letterhead, undated. One response to this plea, sent on University of Wisconsin-Green Bay let- terhead by Dr. Thomas L. Goodale, Assistant Professor of Leisure Sciences, to Congressman John Byrnes of Wisconsin and dated April, 1970, stated in part: "Perhaps an in- finitely wiser force than any of us made certain that when government burst its seams, necessitating broad grants of discretionary power to agencies, a more intelligent and sophisticated citizenry emerges to review those discre- tionary powers. Thus, we have a Forest Service and a SOSAC . . . ." When Deputy Regional Forester Jay Cravens and Ottawa National Forest Supervisor Ralph Kizer visited the offices of Michigan and Wisconsin members of Congress in Washington early in 1970 to discuss the Sylvania situation, they found that all of the Senators and Congressmen visited had "thick Sylvania files." Ralph Kizer, personal interview, Lake City, Mich., Jan. 9, 1970. For example, Senator Robert P. Griffin of Michigan received letters from-both the Forest Service (Deputy Chief M. M. Nelson, March 18, 1970: "[Sylvania] is not wilderness and wilderness manage- ment and criteria are not applicable . . . .") and SOSAC (Robert Ditton, April, 1970: "Nelson is playing on words! . . . As a result of Nelson's implications, I can hardly see how the development of a wilderness system in this country will go beyond mere tokenism . . . ."). 243 SOSAC's horizon of concern was broadened to include the 17,000-acre Cyrus H. McCormick Experimental Forest lo- cated in the north central part of Michigan's Upper Penin- sula, 40 miles west of Marquette.ll Learning from its Sylvania experience, the Regional Office made a ver batim transcript of the entire proceedings of its "ad hoc com- mittee meeting held at Marquette, Michigan [on December 5 and 6, 1969] to discuss various research and management alternatives" for the McCormick Tract. Don Quinn of Escanaba, a SOSAC leader, was one of the 21 participants in this session.12 1J'Bequeathed to the U.S. Government by Mr. McCormick, it became, upon his death, Forest Service property and part of the Ottawa National Forest in November 1969. It was accepted by the Government under the authorization of the Clark-McNary Act of 1924 and the 1923 Enabling Act for the State of Michigan. 12See McCormick Ad Hoc Committee Meeting, Decemr ber 5-6, 1969,Ma£guette, Michigan, an 84-page transcript prepared by the Forest Service Regional Office, Milwaukee, Wis. In particular, see p. 15 for discussion of the Forest Service's "research natural areas" program by F. Bryan Clark of the North Central Forest Experiment Station, St. Paul, Minn. SOSAC's letters to George James of Jan. 10, 1970 ("SOSAC, Inc. has set up a watchdog committee on the McCormick Forest.. . . .§)and Jan. 23, 1970 ("We . . . are curious as to the reason for the dissolution of the McCormick Ad Hoc Committee . . . . [W]e have no intention of being guilty of laches in regard to McCormick.") demonstrated the group's interest in this area. The Regional Forester's response to the Jan. 23 letter: "There was no intention that this com- mittee should serve as an advisory committee . . . . The use of [program review] committees is standard procedure for Forest Service Research." Personal letter, from Philip L. Archibald, Assistant Regional Forester, Milwaukee, Wis., to Dr. Ronald Starkey, Green Bay, Wis., Jan. 28, 1970. 244 OSOAC took issue with the Forest Service's practice of marking and cutting down "hazard trees" in the vicinity 13 Difficulties con- of Sylvania's water access campsites. tinued between the two groups during negotiations regard- ing the scheduling of a meeting at which SOSAC representa- tives could present in full their ideas regarding the future of Sylvania.14 13Watersmeet District Ranger March Lefler's note to Dr. Gandt of Jan. 19, 1970 informing him that this proce- dure was about to get under way touched off an exchange of letters with SOSAC on this subject, e.g., "Your present thinking is little better than my basketball court exper- ience. Therefore, NO MORE CUTTING OF 'HAZARD TREES'!!! [sic]" (personal letter from Ditton to James, Jan. 29, 1970) and "Cutting of this vegetation in the Water Influence Zone . . . opens up questions of malfeasance . . ." (personal letter from Gandt to James, Feb. 6, 1970). Lefler's Jan. 19 letter to Gandt included a copy of-a re- port from the Conservation Court Digest on Middaugh v. U.S., 293 F. Supp. 977 (D. Wyo. 1968),"Action for wrongful death against the United States, the decedant having been killed by a falling lodgepole pine tree at a designated campsite in the Lewis and Clark Campground, Yellowstone National Park." The court granted damages to the extent of $43,750.00. SOSAC, in this connection, suggested that "giving proper notice" to visitors would relieve the Forest Service of re- sponsibilities which could lead to tort actions (Owen Phelps, in Transcript of Meetipg on Sylvania, SOSAC-U.S. Forest Ser- vice, Feb. 26, 1970, Forest Service, Milwaukee, Wis., p. 35). An analogous case is City of Cleveland v. Walker, 3 N.E.Zd 990 (1936) in which a municipality maintaining a public park as nearly as possible in its natural state for welfare of public was held to be performing government function and not liable on ground of common-law negligence for death of children who fell through ice while playing on park pond; the hazard was adjudged to have been created by nature. 14The Forest Service's lack of enthusiasm for a full review of its management plan may have been based on advice from federal lawyers, who probably cautioned the Regional Office staff to avoid changing the management plan and thus Opening it up to another judicial review (see res judicata discussion, pp. 261-268, infra.). 245 The agency's first offer provided for a three-hour session on February 26, with the Forest Service preparing 15 the agenda. After this plan was severely criticized by SOSAC,16 the Regional Office set aside the entire day of February 26, 1970 for this discussion. Seventeen private citizens, most of them from SOSAC but also including two Milwaukee newspapermen and Michigan Natural Resource Commissioner E. M. "Matt" Laitala, 12 Forest Service staff members including the Regional Fores- ter, the Ottawa Forest Supervisor, and the Watersmeet Dis- trict Ranger, and Attorney E. J. "Jack" Curtis of the USDA Office of General Counsel attended this meeting at the 17 Forest Service Regional Office in Milwaukee. A ver batim transcript of the proceedings was made for future reference.18 15Archibald to Gandt, Jan. 13, 1970. 16Dr. Gandt to James, Jan. 17, 1970: "SOSAC rejects any facade of a meeting which would not allow us . . . to bring out our important points . . . ." Dr. Ditton to James, Jan. 28, 1970: "Avoiding our group may mean that your day is a little easier . . . . Your earlier invitation of an all- -day meeting . . . is turning into a farce . . . . Your agency's simplistic approach to resource management will never survive the ecological focus of the 70's . . . . l7See Addresses of Attendees, U.S. Forest Service- SOSAC, Inc. Meeting February 26, 1970, Forest Service, Milwaukee, Wis., 2ipp. l8Transcri t of Meetin on S lvania, SOSAC-U.S. Forest Serv1ce, February 26, 1370, Forest Service, Milwau- kee, Wis., 100 pp. 246 At the February 26 meeting, papers were read orally and submitted for the record by an impressive battery of SOSAC representatives. Ph.D.‘s from the University of Wis- consin-Green Bay and other scientists offered comments and suggestions on many phases of the issue including water quality, vegetative manipulation, recreation planning, the bald eagle, snowmobiles, the Marsh Lake timber sale ("A Wilderness Degredation"), and "freedom of information." Professor Emil Haney, Jr., whose doctorate is in the field of resource economics, observed that "the piecemeal zoning such as that being applied in Sylvania today represents a very high time preference rate and a very short planning period." SOSAC called for the appointment of a multidis- ciplinary review board to evaluate the agency's plans for the Sylvania Recreation Area, and for a moratorium on de- velOpment there pending the results of such a review. U.S. Attorney Curtis contributed these observations on the impact of the December 11 Opinion of Judge Kent's: . . . [T]he inadequacy of the plan . . . was a mat- ter that had been decided by a court . . . . I can't see [the Forest Service] continuing to spend the tax- payers' money to conduct extended research on matters that have been taken to court, have been tried, a conclusion has been reached [and it] was not appealed . . . . [T]here is no further recourse by SOSAC to the courts with relation to Sylvania, insofar as the adequacy of the management plan . . . . I have saved from that the way the management plan is carried out . . . . 247 The meeting ended with an off-the-cuff speech by Mr. Laitala, whose comments infuriated the SOSAC representa- tives: . . . This session today has reminded me somewhat of the sit-ins that we've had on the university cam- puses where intemperate and irresponsible charges have been made, and I haven't like it . . . . [T]his looks like harassment to me . . . . [Y]ou can't lock up Sylvania just for this elite gang that sits around here today . . . . The Forest Service response to SOSAC's February 26 presentations was contained in a five-page letter from George James to Dr. Jerry Gandt dated April 24, 1970. This letter, multilithed and distributed with copies of the trans- cript of the meeting,19 states in part: . . . We appreciate the effort which SOSAC members expended in preparing the papers presented at the meeting. This is a result of your deliberations and reflects the thinking of your organization. A review of the papers presented reveals a number of areas that require comment. We sincerely hope our comments will help establish mutual understanding and closer rela- tionships between SOSAC and the Forest Service . . . . 19Copies of the transcript were sent to a mailing list of people who had been involved in the Sylvania issue. The covering letter stated in part: "Due to the volume of the transcript, we feel we cannot give it wide-spread dis- tribution without charging a nominal fee to cover printing costs. Additional copies of this transcript are available at a cost of $.05 per page plus a $.50 handling charge. The cost of the complete transcript is $5.50." Personal letter, from Philip L. Archibald, Chief, Division of In- formation and Education, Forest Service, Milwaukee, Wis., to Gerald Goodman, Regional Vice-President, Michigan United Conservation Clubs, Iron River, Michigan, April 28, 1970. 248 We are anxious to receive any new information which would be of value in planning, development and manage- ment of the area. However, we must be perfectly can- did with you and state that it is not our intent to manage Sylvania as wilderness or to call a halt to develOpments currently under way. Mr. Ralph Kizer, Supervisor, Ottawa National Forest, is considering some modifications. For instance, he intends to locate the parking area immediately adjacent to the Whitefish Lake road, on the west side of the original Sylvania Tract. Access from this parking area to Whitefish Lake will be over a one-half mile trail. He is also studying the need for all 130 primitive camps. Some of those not developed may be eliminated from the plan. Mr. Kizer is continuing his efforts with the various Michigan governmental units to con- 20 trol use of motor boats on the lakes within the area. . . . The question of wilderness seems to be the heart of the difference of opinion between SOSAC and the Forest Service. Sylvania should not be locked up as a museum piece,21 but rather should be dedicated to serving the public through wise and careful use of its natural resources, and in accordance with com- mitments of record with the County Board of Super- visors and with the knowledge and support of certain Michigan Members of the Congress. To assure everyone that the area is best serving the public through care- ful development and management, and that all commit- ments are faithfully being carried out, Mr. Kizer is considering calling another Ad Hoc advisory meeting this summer . . . .22 Unsatisfied, Dr. Gandt, on June 8, 1970, wrote to Forest Service Chief Ed Cliff requesting a meeting with the Chief in Washington to discuss Sylvania. Deputy Chief 20See Michigan State Law 281.651c, Sec. lc deal- ing with motorboat controls. 21See p. 73, supra. 22See;p.257 r infra. 249 M. M. Nelson responded (on June 18), stating (1) "there has been a court determination" regarding the-management plan and (2) "[t]he transcript of your meeting in Milwaukee . . . has been studied [here and t]here seems little purpose in devoting your time and ours to another meeting about it." SOSAC then attempted to exploit the publicity media of the traditional national conservation groups that SOSAC's representatives were critical of in any other context.23 An article by Tom Goodale entitled "Who Killed Sylvania?" was submitted for publication in the Sierra Club Bulletin 24 on May 14, 1970. Articles by Robert Ditton were submitted to The Wilderness Society's The Living Wilderness Magazine ("Sylvania: The Dying Wilderness") and to the American Forestry Association's American Forests magazine ("Recre- ation Pollution") in July of 1970. None of these articles critical of the Forest Service have appeared in print.25 23"Gadfly conservation groups dealing with all agencies are dead." Robert Ditton, speech before a Michi- gan State University park and recreation policy class, PRR 842, East Lansing, Mich., Oct. 21, 1970. 24By Dr. Gandt, through attorney Tony Ruckel, whom Gandt described as his "friend in the (Sierra Club) castle." 25Probably because (1) the Mackinac Chapter of the Sierra Club was consulted by the editor of the Bulletin re- garding the wisdom of running Goodale's piece and (2) Douglas Scott, formerly conservation committee chairman of the Mackinac Chapter of the Sierra Club, joined the national staff of The Wilderness Society in 1970 and made his ob- jections to Ditton's article known there. 250 Failing to penetrate other groups' media, SOSAC created its own, Up Front with SOSAC--An Environmental Pro- tection Newsletter. In the first number of the single-legal- page, mimeographed newsletter, dated October 1970, Dr. Gandt observed: Sylvania is our primary concern, but we have taken the initiative in the following; Eagles and other endangered species; the Ellis LOOP Highway prOposed for the Cibola National Forest (N.M.); Project Sanguine (Wis.); the McCormick Tract (Mich.); the Apostle Islands National Park (Wis.); Boundary Waters Canoe Area (Minn.); Lusk Creek Impoundment in Shawnee National Forest (Ill.); the Oklawaha River Project (Fla); Voyageurs National Park (Minn.); Isle Royal National Park (Minn.); Sleep- ing Bear Dunes National Park (Mich.); the White Cloud Mountains National Forest (Idaho); and even locally in the Green Bay area, the suitability of selecting solid waste disposal areas. This broadened concern26--not reflected in the SOSAC name--resulted in the December 1, 1970 announcement that SOSAC, Inc. has been renamed [Wilderness Watch, Inc.] to reflect its growing involvement in the fight to maintain the environmental quality of the public domain. Wilderness Watch, Inc. is a unique coalition of laymen and scientists, giving it the capability of dealing with contemporary environmental problems. Reactions of Other Groups SOSAC's "harassment" of the Forest Service resulted in representatives of township, county, and state governing 26The "gadfly" approach? See footnote 23 previous page.~ 251 bodies rushing to the federal agency's defense.27 Frank Basso, Watersmeet Township Supervisor, sent a two-page letter to Dr. Gandt on February 24, 1970 asking SOSAC to document its accusations regarding the Forest Service's "malfeasance." On February 26, 1970 the Vilas County (Wisconsin) News-Review observed editorially that the man- agement of Sylvania appeared to be "heading toward a bal- ance" and that the agency's plan seemed "about as fair as possible." The Commission on Natural Resources of the State of Michigan, meeting in Ann Arbor on March 12, 1970,28 unanimously adOpted a resolution "deplorIingl the unwar- ranted charges made against the Forest Service, and . . . express[ing] its confidence in the management of the Sylvania Recreation Area by the [Forest] Service . . . ." Even the Gogebic County Board of Supervisors was moved, on March 23, 1970, to inform Senators Hart, Griffin, Nelson and Proxmire and Representative Ruppe that they "hereby support the present management and development program. . . 27"SOSAC has just iced the local government behind the National Forest plan of develOpment." Richard Guth, personal interview, East Lansing, Mich., Oct. 6, 1970. 28On the campus of the University of Michigan, in connection with the students' Environmental Teach-in. 252 the U.S. Forest Service is . . . using for the development of the Sylvania Tract.29 The Wisconsin and Michigan affiliates of the National Wildlife Federation sent expressions of strong disagreement with SOSAC to their entire Congressional delegations. Les Woerpel of Stevens Point, Wisconsin, chairman of the Wis- consin Wildlife Federation's natural resources committee, suggested in his February 4, 1970 message on behalf of that Federation to the Wisconsin Congressional delegation that "[SOSAC is] nit-picking the Forest Service to death," adding, "[T]he Forest Service is trying to do a good job. . . ."30 29This letter also stated: "We advise Dr. Gandt to clean up his own backyard, such as the Fox River, before he starts to tell other people how to manage their backyards." 30On May 11, 1970 Woerpel sent James L. Rouman, late executive director of the Michigan United Conservation Clubs in Lansing, a photocopy of SOSAC's May 3, 1970 Milwaukee Journal advertisement resembling a death notice and stating: "In sympathy with you, Milwaukee in the sad loss of your beautiful trees in the Root River Parkway. We share your sorrow in a similar tragedy--the loss of a virgin forest now being cut by the U.S. Forest Service . . . it's called Sylvania. . . ." Accompanying the ad in the materials from Woerpel were copies of a series of Journal articles describ- ing how 25 acres of "one of the choicest [public] woods in Milwaukee County" had been logged as a result of a swindle. Woerpel's covering comment to Rouman was: "Another example of how SOSAC is misleading the public and playing on emo-. tions for its support to get Sylvania closed as a Wilder- ness Area." See also, "The Truth About Sylvania," Wisconsin Wildlife Federation News and Views, Feb. 1970; and the Iron» wood (Mich.) Daily Globe column by Bill Carow on July 10, 1970: "Through all of the harassment [by SOSAC and others], Kizer and his men have carried on cheerfully, answering ques- tions from senators and congressmen in correspondence, along with SOSAC letters. . . . 253 Jim Rouman likewise placed the 350-club Michigan United Conservation Clubs organization squarely in sup- port of the Forest Service with letters31 to the entire Michigan Congressional delegation stating in part: Michigan United Conservation Clubs is very much disturbed by the activities of SOSAC . . . . [We] re- quest that you disregard any attempts by a small group of individuals who are intent on blocking the most important recreational development in the western Upper Peninsula. We . . . are convinced that the Forest Service plans are in the best interest of all people concerned. Gerald K. Goodman of Iron River, Michigan, a re— gional vice-president of MUCC, also sent protests regard- ing SOSAC's tactics to Michigan Senators and House members, describing SOSAC as a "handful of zealots."32 The Mackinac Chapter of the Sierra Club maintained a quiet, behind-the-scenes campaign to encourage the Forest Service to protect the wildness of Sylvania. The January 18, 1970 number of the chapter's newsletter, The Mackinac, con- tained a field report on developments and "non-conforming" 31Sent on April 30, 1970. Rouman also wrote, on April 29, 1970, to Daniel A. Poole, President of the Wild- life Management Institute, Washington, D.C., describing SOSAC as attempting to "shoot down" Forest Service plans for Sylvania and complaining that SOSAC's display at the North American Wildlife Conference in Chicago in March, 1970 sponsored by the Institute, "did not tell the whole story." 321n letters dated March 5 and March 27, 1970. 254 uses afoot in Sylvania33 together with an editorial comment including a concerned, "It looks like our Sylvania policy needs rethinking." Relations between the chairman of the Mackinac Chapter, Miss Virginia Prentice of Ann Arbor, and the staff of the Ottawa National Forest remained cordial, however.34 33"Where is the wilderness? We skirt it, edge up to it, reach for it, and--hear the whine, see the snow- mobile track, glimpse the bright flutter of surveyors' marks. . . ." 34For example, here is an exchange between Miss Prentice (June 26, 1970; the questions [Q]) and Dick Guth, acting forest supervisor (August 5. 1970; the ans- wers [A]): Q. What was the outcome of the hearings on use of motorboats in Sylvania? Is there an official document I can request from the state that will contain the information? A. The Michigan Waterways Commission held a hearing in Watersmeet, July 30, concerning the use of motorboats in Sylvania. I just received a verbal report from Marsh Lefler concerning the hearing. He informed me it was well attended and all the Crooked Lake riparian owners were present. These owners were anxious to have some restrictions on the use of motors but did not want them banned. The Crooked Lake situa- tion was deleted for further study and recommendation. The banning of motors on the Michigan waters of Big Bateau Lake was also deleted at this time. Virginia, we believe we can get this one back in the hopper soon. The principal Wisconsin riparian owners may, in the near future, sanction this ban. This should then satisfy the Watersmeet Township Board and they will then request action. The Town Board objected to the ban because they felt the Wisconsin owners should first have a chance to express themselves. 255 Forwarded to Miss Prentice were copies of cor- respondence between Kizer and Bob Ditton of SOSAC, in which Ditton alleged that the Mackinac Chapter of the Sierra Club There were no objections to banning motors on the rest of the listed Sylvania lakes. This is significant. We seriously doubt if this would have happened two years ago. It is a good sign the local people are accepting our Sylvania management principals. The next step is action by the Michigan Waterways Commission, followed by final adoption by the Watersmeet Town Board. We believe the State motor ban on most Sylvania waters will be effective some time in November. We will keep you posted if some adverse situation crops up. Q. Is the Snowmobile ban through the hunting season and during eagle nesting time official, and what can I quote as a reference, i.e., is there an official notice as there was for McCormick tract? A. Quoting Ralph [Kizer] "I think, in 1970-1971, we should ban snowmobiles at all times from the end of deer hunting season to March 1. We will make a formal announcement in the Fall." Marsh Lefler, Bob Booker and myself have reviewed the snowmobile trails this Spring for any signs of littering or damage. There was virtually none of either. . . . We will continue, however, to carefully evaluate snow- mobiles and Sylvania again this year. Q. What is the official title of the group that is to study Botanical zone boundaries, etc. this summer? And can you furnish the list of participants? A. We really haven't named the Botanical Zone Study group. Dr. Ed Voss, the Herbarium, University of Michigan, Ann Arbor, Michigan, 48104, one of his assis- tants, along with Fred Metzger from the Lab at Marquette and Bob Booker spent two days in the area in July. We anticipate more inputs from Fred, Carl Tubbs, Dr. Bourdo from Michigan Tech. and Dr. Mowbray from SOSAC. There still is a lot of work necessary before we finalize the boundary. We don't want to miss any significant 256 "has demonstrated a much lesser interest in Sylvania in com- parison to the activities and commitment of SOSAC, Inc.," to which Kizer had replied: I cannot agree with you that the Mackinac Chapter has any less interest in Sylvania than SOSAC, Inc. I will agree quickly that the modus operandi of the Sierra Club is quite different than SOSAC s. situations. Perhaps we will be satisfied with investi- gations and recommendations about a year from now. At least we hope so. Q. Dick Guth mentioned that an outfitter had lo- cated in Watersmeet-—outside the Sylvania tract area-- and that the Forest Service would not now consider pro- viding for outfitter services in the area. Can these . . . relevant portions of the management plan be con- sidered "DELETED?" A. As long as outfitter services are adequately pro- vided by outside commercial outfitters, we believe the public needs are being met. We will not promote such concessionaire facilities utilizing National Forest lands in or adjacent to Sylvania. We will make every effort to avoid competition with outfitters operating from pri- vate lands on the outside. We already have, of course, the concession stand at the Clark Lake Day Use Area. One of the outside outfitters has expressed an interest in bidding on and operating this facility. Regardless of this, canoe rental and outfitting will be handled from the outside, not from the Clark Lake facility. A. I saw a OOpy of your letter to Gerry Gandt pro- viding information about letting bids for construction of 50 camp sites at Clark Lake and a road on to Snap- jack Lake (?) What about the $90,000 item for road and boat launch at Indian Lake campgrounds (p. 44)? Is that not to be completed in Fiscal Year 1971 (I hope!)? If you have a tabulation of the items completed on schedule, those underway, and those behind schedule, temporarily tabled, or essentially deleted, it would be a big help. 257 The main thrust of these letters between Ditton and Kizer35 was that (l) SOSAC could not understandwwhy the "Sylvania Ad Hoc Advisory Committee" hadn't been reconvened A. The road construction contract for the camp- ground, located 1/4 mile east of Clark Lake, has been let as well as the Snap Jack-Long Lake Road. AS you probably recall, this later road will provide a drive- in launch on Long Lake (which is only 1/2 in Sylvania) and a carry-down access to Snap Jack Lake. Our pre- sent forecast is for no recreation construction funds in Fiscal Year 71. In fact, we do not anticipate enough to permit tOpographic surveys and preliminary plan preparation for this project (Indian Lake) until at least FY 72. Virginia, the best way to handle your final request is by indicating our progress from the development schedule in the Plan. We have attached c0pies of these pages with some brief notes on their status. Should you need a fuller explanation on any items, please let uS know. Our highest priorities for construction in Sylvania are to: 1. Complete the Clark Lake Day Use Area. 2. Complete the Whitefish Lake Road. 3. Complete the Clark and Crooked Lake Boat Launch sites. 4. Construct the entrance Station. 5. Following road construction, complete the campground near Clark Lake. 6. Following road construction, complete the developments at Snap Jack and Long Lakes. Virginia, we promise to keep you informed of any changes that may occur. . . . Forest Supervisor Ralph Kizer noted in a November 30, 1970 letter to Miss Prentice that: I know we can continue to work closely with you and the Sierra Club. We place a high value on Sierra Club opinion and advice. Your thoughts always seem to be the result of much deliberation and are always presented cordially. We appreciate this and will continue to react accordingly. 35Ditton's of Nov. 16, 1970, postmarked Nov. 26, 1970; Kizer's of Nov. 30, 1970. 258 as "Regional Forester George James promised" and (2) Kizer's explanation for this decision: My decision not to go ahead with the ad hoc review com- mittee was made for several reasons. Mainly, since pro- posed developmental projects were subjected to consider- able review before being started, we felt that additional study at a time when these same projects were in various stages of completion would not have much value. It would seem that the best time for another formal examin- ation would be when developments are Operational. In the meanwhile, we certainly have no objection to anyone observing and commenting on various projects under con- struction. Virginia Prentice, having concluded with her asso- ciates that the proposed Sylvania Area campground develop- ment on now—undevelOped Indian Lake was ill-conceived, has begun a campaign within the Sierra Club to raise the money needed to buy the remaining privately owned land on this lake, thus permitting its total preservation.36 36"The Forest Service indicated . . . that if they could be assured that there would be no development on Indian Lake, they would reconsider the plans to put a 750- Slot campsite in that area. I think we ought to try to acquire that land one way or another." Virginia Prentice, memorandum to Chuck Meyer, Mackinac Chapter delegate to the Midwest Regional Conservation Committee of the Sierra Club, Oct. 1, 1970. See also, Miss Prentice's memorandum, "Fund Raising Effort," to chapter leaders, Oct. 1, 1970. Supervisor Kizer is more interested in obtaining the author- ity to acquire now-private lands within the 93,000-acre "hole in the doughnut" in the middle of the Ottawa National Forest. The Forest's proclamation boundary now excludes the equivalent of four townships in Ontonagon County east of. Lake Gogebic. Uncontrolled development of this area in the midst of the Forest concerns the supervisor. Ralph Kizer, personal interview, Lake City, Mich., Jan. 9, 1971. 259 The Mackinac Chapter's approach37 was summed up by Virginia Prentice in her remarks to a Michigan State Uni- versity park and recreation policy class on October 21, 1970: Rather than attack each violation of wilderness, we try to work with agency peOple, suggesting alternatives, seeking changes in emphasis and outlook. We realize the job won't be done overnight.38 Support for SOSAC's position on Sylvania came, on September 11, 1970, from the Wisconsin Resource Conservation Council39 and, in October 1970, from the Northern Environ- mental Council.4o 37SOSAC's tactics irritated members of the Sierra Club's Mackinac Chapter. The minutes of the January 5, 1971 meeting of the chapter's conservation committee in- cluded this item: "SOSAC (Save Our Sylvania Action Comr m[ittee]) in the UP is reportedly giving all environmental groups in the UP a bad image by their less than tactful approach. The Cons[ervation] Comm[ittee] urged the UP Task Force to keep close tabs on SOSAC's activities and step in with a rebuttal or statement of our position when- ever needed." 38Miss Prentice also said that the 1964 Sylvania study-proposal was the result of "professional mediocrity," that no one in the Forest Service seemed to be interested in the "whole plan," and that the "systems approach" should have been used in its creation, but was not. 39In the form of a resolution passed at its annual meeting at Delevan, Wis. 40In the form of a letter to Ralph Kizer from NBC Chairman Paul Lukens. The Northern Environmental Council was organized in Superior, Minn. in January 1970. Charles Stoddard was elected executive director. See "New Environ- mental Council Headed by Superior Man," Duluth News Tribune, Feb. 1, 1970. 260 Asked in late 1970 for his position of the Sylvania issue, U.S. Senator Gaylord Nelson of Wisconsin essentially echoed the recommendations of the wilderness conservation organizations: . . . In a lengthy letter this year to the Chief of the Forest Service in Washington, I pointed out the unique wilderness values of the area and urged their preserva- tion by the following steps: 1. Prescribe limits on overnight use, and eventually, guidelines on the densities of use permissible during the day. 2. Spell out more precisely for the Botanical and Pioneer zones the wilderness protection principles for these areas in the development plan. 3. Extend and spell out these same principles for wilderness protection of all lakeshore in the Tract in one quarter mile bands extending back from the water- front, and Similarly, for all trails in the area. 4. Make it clear now that no additional roads, large campgrounds, primitive campsites, boat launching ramps and other development will be established beyond what is now included in the development plan. 5. Establish as a high priority the elimination of all motorboating in the Sylvania Recreation Area and limiting snowmobiling in areas where adverse effects on wildlife and winter solitude may be indicated. 6. Identify key "in-holdings" which should be ac- quired through fee simple or protected with conserva- tion easements. 7. In multiple use areas, spell out the principles permitting only winter logging and very selective cutting, prohibiting permanent logging roads, and assuring ad- herence to other appropriate forest management principles. Further, the letter suggested that a review committee of scientists, citizens, and federal agency and local representatives to be established to undertake a thor- ough evaluation of plans for the Sylvania area. The results of such a study, particularly if it provided for the involvement of concerned citizens, could be a greater 261 public understanding Of the problems involved, and the study findings could contribute important new know- ledge for the benefit of future administrators. The letter emphasized my concern that the protec- tions which the Forest Service plans for the area be spelled out in regulations so future administrators and the public will understand the intent, and so there will not be continuing alterations in the plan as the pressures for use increase over the years. It is clear, as the letter pointed out, that the best insurance that can be given for deriving local economic benefits from Sylvania twenty years from now as well as today is a long range plan strictly enforced. In its reply, the Forest Service said these pro- posals would be taken into account in decisions on Sylvania. Further, the Forest Service gave assurances that no future revision in the Sylvania plan will be made without full public review. It appears that the Forest Service is in general agreement-with the statements I have made. However, the plan needs to be firmed up with regulations to assure the long-range protection of the Sylvania Area and I will continue discussions with the Forest Ser- vice on this matter. How The Forest Service Views Its Sylvania Plan The Forest Service currently is under no legal con- straint to subject a special area management plan such as that for the Sylvania Recreation Area to public hearings prior to its adoption.42 Senator Gaylord Nelson, personal letter to John E. Carroll, East Lansing, Mich., Nov. 3, 1970. 42It does believe in ad hoc meetings called, con- trolled, and dissolved by the Forest Service. The follow- ing are excerpts from a letter to participants in the Dec. 5-6, 1969 ad hoc meeting concerning the McCormick Experimental Forest, sent on Feb. 17, 1970 by Regional 262 Nor is it obliged to establish permanent citizen ad- visory committees to provide it with feedback from outside user groups.43 In this case, at least, the regional attorney Forester James and North Central Forest Experiment Station Director David B. King: ". . . We feel ad hoc meetings are good; we should hold them as needed to solve major problem situations. They must be timely. Originally, we had an Advisory Council for Research and National Forest Programs in the Lake States. But now the Eastern Region, Forest Service, is too extensive for one advisory council. It is more practical and desirable to take the route of ad hoc committees for specific problem areas. In the recent past we have had good ad hoc meetings concerning Sylvania in Michigan, on the Monongahela Forest in West Virginia, the Hoosier Forest in Indiana, the Wayne in Ohio, and now back to Michigan and the McCormick tract. These meetings, such as the one held in Marquette, are a desirable function on the public stage. We intend to continue this practice whenever it is needed. We want to know and consider your sense of reaction. However, we Should inform you that we cannot, and we hope you do not expect us to fully satisfy everyone. . . . You are all aware that the Forest Service functions in a social-political-economic complex. We are only part of the scene in each state. In one sense, through legislative history, we have a quasi-partnership with County Government and ultimate decisions Should include local as well as national public welfare. . . ." (Letter to H. A. Tanner, Michigan State University, East Lansing, Mich.) Cf., "Hickel Broadens Public Role In Master Planning For Parks," news release from the Office of the Secretary of the Interior, April 26, 1969. Excerpts: "'I believe that public participation in the planning process should be encouraged for all areas of the National Park System,‘ Hickel said. 'Public meetings will afford interested citizens a superior opportunity to make known their views on all proposals affecting a park area. . . .'" At the same time, Secretary Hickel revoked a policy statement adopted on Jan. 18, 1969 and published in the Federal Register on Jan 29, 1969 which required public Hearings on the location and engineering design of any proposed new major National Park System road. See, U.S., Department of Transportation, Federal Highway Administration, Bureau of Public Roads, Poligy and Procedure Memorandum 20-8, Public Hearings and’Location Approva1,dated Jan. 14, 1969 andi"issued under authority of the Federal-aid Highway Act, 263 for the Department of Agriculture's Office of General Counsel saw no reason for continuing any additional baseline or user-impact-on-the-resource research in Sylvania once the court has concluded that the 1968 management plan was "adequate." A "Do Not Distrub" label seems to have been pasted on the 1968 plan following Judge Kent's December 11, 1969 Opinion. The fear of new litigation has kept the Forest Service from even thinking about developing a new management plan:44 23 U.S.C. 101 et seq., 128, 315, sections 2(a), 2(b)(2), and 9(e)(l) of the Department of Transportation Act, 49 U.S.C. 1651(a) and (a)(2), 1657(e)(1); 49 CFR § 1.4(c); and 23 CFR § 1.32." See also, "Appeals in Public Land Cases," Bureau of Land Management, Department of the Interior, Federal Register, Vol. 35, No. 118, June 18, 1970, pp. 10009-10012. The official Forest Service appeals route is described in U.S. Department of Agriculture, Forest Ser- vide, The Appeal Regulation (36 CFR 211.20-211.37), 1965, 20 pp. 43Virginia Prentice, Speaking to a Michigan State University park policy class on Oct. 21, 1970, stated that the Sierra Club is having national legislation drafted which would require every National Forest to have a citizens' advisory council. See "Citizen Involvement in Environmental Decisionmaking," quoting Sidney Howe, president of the Con- servation Foundation, and Stewart Brandborg, executive director of The Wilderness Society, in U.S., Congress, House, Committee on Government Operations, The Epyironmental Decade (Action Proposals for the 1970's), House Report No. 91-1082, 9lst Cong., 2d Sess., 1970, pp. 16-17. 44Or calling another ad hoc committee meeting to consider changes in the plan. Richard Guth, personal inter- view, East Lansing, Mich., Oct. 6, 1970. 264 There is a danger in updating [the Sylvania] plan. We have to be careful in reading "changing needs." We could find ourselves back in court if we change [the plan].45 SOSAC knows this, as well as the Forest Service. Even though, in Bob Ditton's language, "[t]he court only said SOSAC didn't have the guns to prove that it was a 46 lousy plan, the legal doctrine of res judicata--"you cannot retry the same issue; the matter has been decided"-- comes into play here. SOSAC attorney Fred Reiter spelled it out to this investigator on July 28, 1970:47 The only way we can go back [to court] is if they substantially alter their plan, or substantially de- part from the plan in execution. If they follow the plan, there's nothing we can do. The forest officers charged with the implementation of the Sylvania management plan have, however, responded to 45Ralph Kizer, personal interview, East Lansing, Mich., Dec. 2, 1970. . 46Personal interview, East Lansing, Mich., Oct. 21, 1970. The need to "have the guns," i.e., good evidence, was emphasized in the opinion in Ruediger v. Klink, 346 Mich. 357, by Mr. Justice Cardozo (at p. 371): "More and more, we lawyers are awaking to a perception of the truth that what divides and distracts us in the solution of a legal problem is not so much uncertainty about the law as uncertainty about the facts--the facts which generate the law. Let the facts be known as they are, and the law will sprout from the seed and turn its branches toward the light." 47 48"[T]he principle [is] that a cause of action once finally determined between parties by a competent tribunal cannot afterwards be litigated between the parties or their privies in a new proceeding." See "Res judicata," Words and Phrases (St. Paul, Minn.: West Publishing Co., 1950), pp. 613-822. Personal interview, Green Bay, Wis. 265 encouragement from SOSAC and the Sierra Club--as well as to Judge Kent's admonitions without any force of law regarding motorboats and snowmobiles, and to their own experience-- to the extent of making these "refinements" in the plan: (1) In mid-February 1970 Supervisor Kizer announced the closure of Sylvania to snowmobiles after March 1 "to protect the bald eagles which begin nesting activities soon after March 1 and to prevent the harassment of undernourished deer."49 In late November 1970 Kizer announced that Sylvania would be open to snowmobiles only from after the end of deer hunting season until the beginning of the eagle nesting sea- son, thus limiting snowmobile use in Sylvania to the period 50 December 6, 1970-March l, 1971. (2) The "Muskrat" water access campsite on Crooked Lake was closed to avoid dis- 51 turbing the bald eagles at a nearby active nest. (3) Painted 49"Sylvania Bans Snowmobiles To Protect Eagles," Green Bay Press-Gazette, Feb. 22, 1970. 50"Sylvania Not Open To Sleds," The State Journal, Lansing, Mich., Nov. 28, 1970, p. C-3. The Sierra Club's position is that snowmobiles should be completely prohibited in Sylvania and that "any area that is free of motors in the summer Should be free of motors in the winter." Virginia Prentice, personal interview, East Lansing, Oct. 21, 1970. For a typical anti-snowmobile article see, Jack Olsen, "Time to Control Snowmobiles," Reader's Digest, Dec. 1970, pp. 174-177. 51Another federal agency, the Bureau of Sport Fish- eries and Wildlife, also is working to preserve the bald eagle in northern Michigan. See, George Rintamaki, "Bald Eagle : Seney [Refuge] Assists Birds," The State Journal, Lansing, Mich., Mar. 21, 1970: "[The U.P. is] one of the last large wild districts left to the bird in the entire nation." Forest Service concern for endangered species is 266 metal garbage cans were removed from several water access campsites; instead, campers were given plastic garbage bags 52 and asked to pack out what they packed in. (4) The Forest Service is working with the State and with Watersmeet Town- ship to achieve, over time, total elimination of motorboat use in Sylvania. (5) The forest supervisor "has pledged in writing not to offer any more timber sales [in Sylvania] unless he's satisfied that the Kimberly-Clark sale hasn't hurt the environment.53 (6) The water access campsite fa— cilities on Deer Island Lake, within the "Botanical Zone," have been removed, and there is to be no overnight use in 54 this zone. (7) Plans to construct a spur road to a park- ing lot within a quarter-mile of Whitefish Lake have been 55 abandoned. (8) The "design mistake" which resulted in typified by these four-color booklets: Kirtland's Warbler Management Area, published by the Huron National Forest, Cadillac, Mich.; Protectinngndangered Wildlife and Endan- gered Wildflowers, both published by the Southern Region, Forest Service, Atlanta, Ga. 30309. 52"We took the Sierra Club's advice [on this and it has been a] big success." Richard Guth, personal interview, East Lansing, Mich., Oct. 6, 1970. 53 Virginia Prentice, personal interview, East Lansing Mich., Oct. 21, 1970. The Marsh Lake sale is more than one- half mile from Marsh Lake; stumps from logging road-construc- tion were removed to a "stump dump" outside Sylvania; the logging access road was heavily seeded with native grasses in the Spring; landscape architects participated in the choice of trees to be cut; many large trees were left standing. 54Marsh Lefler, personal interview, Watersmeet, Mich., July 23, 1970. 55Ibid. 267 the siltation of bogs during the construction of County Route 535 northeast of Clark Lake "will not be repeated."56 Those in charge of Sylvania are taking their role as stewards of the property seriously; Watersmeet District Ranger, proud of his role in the establishment of the area, states, for example, that he "wants [Sylvania] to be a model for the Nation, [an example] of what we [in the Forest Service] can do."57 The Ottawa Forest and the Eastern Region will find it difficult to keep their 1968 Sylvania management plan "frozen" for very long. These excerpts from a draft of 58 the agency's own Recreation Planning Handbook Show why this might be so (emphasis supplied): 212 - Necessity for Plan or Alternatives . . . Factors resulting in public use of the National Forest System for outdoor recreation purposes are con- stantly changing. Recreation management and devel- opment planners must constantly monitor the total management situation and suggest plan modifica- tions. . . . 500 - Plan Review and Monitoring A plan which is prepared with the objectiveness and thoroughness of professional quality is only as good as the monitoring and review that it periodically re- ceives. Continual updating is necessagy. . . . In all cases, management plans are subject to changes. . . . 551bid. 57Ibid. 58U.S., Department of Agriculture, Forest Service, Forest Service Handbook, FSH 2309.13, "Draft copy for review purposes, 10/28/69.1t 268 521 - Regional Recreation Management Plan The Regional Recreation Management Plan Should be thor- oughly reviewed and completely rewritten at least every five (5) years. . . . 522 - National Forest Recreation Management Plan The National Forest Recreation Management Plan should be thoroughly reviewed and rewritten at least every 5 years. . . . 540 - Plan Maintenance and Revision Plan maintenance or revision is undertaken to update data and provide solution to problems which have been identified in the process of plan monitoring and re- view. . . . Gandt v. Hardin: The Legal Implications The United States Forest Service is being sued from hell to breakfast these days . . . . The suits are all coming from one direction, originating among citizen conservation organizations, distressed and disturbed over the management of the public forests in an age of environmental crisis. . . . Citizen ac- tivists can no longer be easily dismissed as well intentioned but misguided extremist minority groups. . . 59 While no attempt will be made here to provide an in-depth review of the entire environmental law field to give Gandt v. Hardin its prOper status in that galaxy of citizen class actions to change agency policies alluded to by American Forests columnist Mike Frome, supra.,60 a summary discussion of the legal implications of the Gandt case is in order. 59“Mike Frome" (column), American Forests, OCt" 1970, pp. 3, 70-71. 60For an overview of the field, see Robert R. Lohrmann, "The Environmental Lawsuit: Traditional Doctrines and 269 Gandt v. Hardin began and ended at the trial (fed- eral district) court level. It was not appealed. There- fore, the court's findings in this case have a bearing on future similar cases only to the extent that other districts may cite this opinion--they don't need to follow it. Under the common law doctrine of stare decisis, only opinions handed down by the Supreme Court (or a Circuit Court of Appeals, when the Supreme Court has not ruled on the issue) set legal precedent which must be followed in similar circumstances by subordinate jurisdictions. The legal principles at issue in the Gandt V. Hardin case: Standing to sue. Six years ago non-property-holding plaintiffs could not obtain standing to sue; they were not considered "aggrieved parties." The merits of their cases did not matter. (Whether or not a plaintiff has standing to sue is unrelated to the merits of his case.) Today, con- cerned citizens, without monetary loss that they can demon- strate, are finding the doors of the courthouse Open to them. Judge Kent, in his December 1969 Gapdp opinion, stated simply that " . . . this Court has reached the conclusion Evolving Theories to Control Pollution," Wayne Law Review, Vol. 16., No. 3, Summer 1970, pp. 1085-1135. See also, Joseph L. Sax, Defending the Environment: A Strategy For Citizen Action (New York: Alfred A. KnOpf, 1971)} Oscar S. Gray, Cases and Materials on Environmental Law (Washing- ton, D.C.: The Bureau of National Affairs, Inc., 1970); Environment Reporta£_(Washington, D.C.: The Bureau of National Affairs, Inc., 1970); and Frank P. Grad, Environ- mental Law Sources and Problems (New York: Matthew Bender, 1970). 270 that these parties plaintiff have standing in this court." Other judges had reached the same conclusion in similar cases, the tide having turned with the Scenic Hudson Opin- 61 ion in 1965. As Robert B. Hicks, Mineral King Project Manager, Walt Disney Productions, Burbank, California noted in a Speech given January 15, 1970 before the Natural Resources Section of the California State Chamber of Commerce in LOS Angeles, The trial courts have ruled that one need not have a direct contractual or other monetary interest in the decision-making result; the courts are appar- ently of the view now--at least the lower courts are-- that if the plaintiffs belong to a class of peOple who have an interest in the matter--and for illustrative purposes, the Multiple-Use Sustained-Yield Act lists recreation as one of its five uses--you at least can come into court and challenge an action which is alleged to be harmful to those interests. Nelson H. Grubbe, U.S. Department of Justice attor- ney, summarized the situation thus, before a conference of forestry school deans and Forest Service Eastern Region personnel at Milwaukee on February 10, 1970: A few years ago the public forest manager was rel- atively free from the harassment and delays of liti- gation. AS attorneys for the government, we often raised as a defense the issue of who had standing to bring a case into court for a judicial review of the 6J'Scenic Hudson Preservation Conference v. Federal “Power Commission, 354 F.2d 608 (2d Cir. 1965), cert. denied sub nom. Consolidated Edison CO. v. Scenic Hudson.Preservar tion Conference, 384 U.S. 941 (1966). See the leading cases cited by Judge Kent, p. 235 , supra. 271 decisions of the forester. That shield has been pierced. The voice of conservation groups and interested citizens has been heard and been heeded by courts especially so in the past five years. . . . Although perhaps buoyed by the October 16, 1970 majority conclusion of the United States Court of Appeals for the Ninth Circuit in Sierra Club v. Hickel62 that . . . it did not believe that "such [Sierra] Club concern without a showing of more direct interest could constitute a standing in the legal sense suffi— cient to challenge the exercise of responsibilities on behalf of all the citizens by two cabinet level officials of the Government acting under congress- ional and constitutional authority[,] federal attorneys at this point in time appear to be simply "going through the motions" with their use of standing as a defense. Robert Rue of the U.S. Department of Agricul- ture's Office of General Counsel told this investigator on March 26, 1970, for example, that passage of the National Environmental Policy Act of 196963 "almost guarantees 62The Mineral King case, Civil No.51,464 (N.D. Cal. 1969) (standing granted and vacated, 433 F.2d 24 [9th Cir., 1970], cert. granted, 91 Sup. Ct, 870 [1971]). See, "Standing to Sue; Preliminary Injunction of Recreation Project in Mineral King Valley Not Warranted," Land and Natural Resources DivisiopJournal, U.S. Department of Justice, V61. 8, No. 12, Dec. 1970, pp. 393—5. 63Public Law 91-190, Signed by the President on Jan. 1, 1970. See, in connection with the implementation of section 102 (2)(c) this Act [42 U.S.C. 4322 (2)(c)], I'Council on Environmental Quality, Statements on Proposed Federal Actions Affecting the Environment, Guidelines," Federal Register, Vol. 36, No. 19, pp. 1398-1402. 272 standing" to conservation groups. And under consideration by the 9lst and 92nd Congresses have been bills similar to the State of Michigan's Environmental Protection Act.64 These bills would . . . provide a right of action for relief for protection of the environment from unreasonable infringement . . . and . . . establish the right of all citizens to the protection, preservation, and enhancement of the environment.6 Passage of such a national Environmental Protec- tion Act would serve to open the doors of the courts to conservation groups once and for all. Judge Kent's Qapdp decision, at the time he handed it down, was only the latest in a series of decisions recognizing that "the right of standing exists 'even if the sole purpose is to vindi- cate the public interest.”66 64Act 127 of the Public Acts of 1970. 65From S. 3575, introduced in the 9lst Congress by Senators McGovern and Hart. See, U.S., Congress, Senate, Committee on Commerce, Environmental Protection Act of 1970, Hearingp before a subcommittee of the Committee on CBmmerce, Senate, 9lst Cong., 2d Sess., 1970, 169 pp. 66Frederick S. Richards, "Walton v. St. Clair: The Standing Question," Natural Resources La er, Vol. IV, No. 1, Jan. 1971, pp. 47-59, at p. 52. THe quotation is from Judge Frank, Associated Industries v. Ickes, 134 F.2d 694, 705 (2nd Cir. 1943), described by Richards as "the first decision by any federal court recognizing the right of a member of a class labeled the consuming public or general public to initiate a public action for reasons other than purely economic one for a private individual." See also, Louis M. Kohlmeier, "High Court Gives Individuals and Concerns Standing to Sue Federal Administrators," The Wall Street Journal, March 4, 1970, p. 6; "Standing to Sue," 273 Sovereign immunipy. Robert Hicks' January 15, 1970 Speech neatly summarized the status of this traditional gov- ernment defense: The lower courts are now also of the view, judging from these environmental cases, that government agen- cies can no longer hide behind the "sovereign immunity" theory; the very essence of these cases tests whether or not the action complained of was within the prescribed duties and obligations of the agency. If it was, then it can be dismissed without reference to the sovereign principle; if it was not, the sovereign immunity argu- ment cannot prevail. Judicial review of administrative discretion. Judge Kent, in his Gandt Opinion, stated succinctly that . . . there is no express provision in the [Multi- ple Use] Act which precludes judicial review or which specifically commits agency action under the Act to complete agency discretion. . . . [T]he Secretary's actions, when they seem to be in contravention of the Act, are subject to judicial review. This portion of Judge Kent's decision also was in line with a series of earlier decisions,67 the effect of which has been well described by James P. Rogers: Land and Natural Resources Division Journal, U.S. Department of Jfistice, Vol. 8, No. 4, Apr.4i970, pp. 79-83; U.S., Congress, Senate, Committee on Interior and Insular Affairs, Law and the Enviropment—-Selected Materials of Tax Exempt Status and Public Interest Litigation, Committee Print, 9lst Cong., 2d Sess., 1970, 43 pp.;i"Environmental Litiga- tion Involving Forest Service Lands," Natural Resources Law Newsletter, Natural Resources Law SectiOn, American Bar Association, Vol. 4, No. 2, Jan. 1971, pp. 4-5; and Don S. Willner, "Who Has Standing in Oregon to Defend the Environ- ment?", Environmental Law, Vol. 1, No. 1, Spring 1970, pp. 44-59. 67See the leading cases cited by the Gandt plain- tiffs, p. 200, supra. 274 First, despite the substantial increase between the 1897-1905 period and today in the statutory objectives of forest management, and therefore the number of that management's beneficiaries, it does not appear likely that the courts will deny their portals to a class of persons who have had their "rights" invaded by executive or administrative decision in the natural resource field. Second, Chicago Junction68 and Lansden69 both tell us that the "person aggrieved" language in the statute is not vital to judicial review of such decisions; even in Frost7O the District Court did not rely on the "standing" issue to avoid decision, though it considered only the generality of the statute rather than the merits of the executive action. Third, in these cases, where the plaintiff represents a class of citizens who are given an interest in the decision, i.e., outdoor recreationalists, potential bidders for timber, applicanpi for range permits, or fish and wildlife interests, for example, the courts will not in most cases tell the Secretary or the Chief of the Forest Service what to decide. They will instead review the factors and considerations upon which he acted. If he used the wrong ones or false ones, re- fused to use those he should.have used, or discriminated between members or the interested class, they will re- mand the case to him for a new decision in which he has used all of the proper criteria the Congress has speci- fied in the statute and the Constitution requires. Thus, it seems, would the judiciary protect statutorily created general interests and enforce "due process" concepts, and yet avoid invasion of the executive department's functions. 68Baltimore and O.R.R. v. United States, 264 U.S. 258 (1924). 69 Lansden v. Hart, 180 F.2d 679 (7th Cir. 1950). 70Frost v. Garrison, 201 F.Supp. 389 (D. Wyo. 1962). 71Listed in the Multiple Use Sustained Yield Act 5 1, Act of June 12, 1960, 74 Stat. 215, 16 U.S.C. §§ 528-531 (1964). 72"The Need for Meaningful Control in the Management of Federally Owned Timberlands," Land and Water Law Review, Vol. IV, No. l, 1969, pp. 121-143. 275 U.S. Attorney Grubbe outlined the Justice Depart- ment's approach to the problem of being able to demonstrate that "due consideration" had been given all resources, in his February 10, 1970 remarks in Milwaukee: Assuming the court is convinced that the plaintiffs are proper parties and the doors of the courthouse open; what can be expected concerning review? What allega- tions will be made against the forester? Failure to give due consideration. Failure to meet tHe needs of the public. Failure to meet the objectives recited in the EnvironmentaI Policy Act [emphasis in the original]. All of which adds up to a conclusion that the land manager was arbitrary, capricious and acting beyond his statutory authority. How these charges will be met must be your concern as well as mine. First we must demonstrate that the decision was technically sound. Was there a scientific basis for it? Will it accomplish the intended result? Now comes testimony concerning the public need-- the cultural and aesthetic justification. Courts may not be convinced that it's a good idea just because the Forest Service thinks so. We must Show the public involvement if it played a role in the decision-making process. Maybe we could Show how public Opinion polls were utilized, if they were. HOpefully we'll have some praise from the news media. We'll probably have ample correspondence from industry or conservation groups. All of this material will be used to support an argument that the broad mandate of "do good" has been followed. SOSAC attorney Fred Reiter contends73 that the "due consideration" requirement of the Multiple Use Act implies that such procedural steps as public hearings and "listening to aggrieved persons" must be taken by forest administrators, 73Personal interview, Green Bay, Wis., July 28, 1970. but] gato admi ment lisl Rue ac ula ti‘ th at m; 276 but U.S. Attorney Robert Rue pointed out to this investi- gator74 that the Forest Service is exempt from the general administrative rule-making policies of the federal govern- ment and that it is not required to hold hearings or pub- lish its rules and rule changes in the Federal Register. Rue also observed that the Forest Service has never lost a case on the basis of "abuse of discretion."75 While Section 2 of the Multiple Use Act does stip- ulate that "due consideration shall be given to the rela- tive values of the various resources in particular areas," this mandatory provision only applies to the weighing of the various values present; discretion is left with the administrator to make the final decision as to which values will be favored. The question citizen conservation groups may direct their attention to, in pre-trial discovery pro- ceedings if necessary, is: "Were sufficient studies per- formed to enable the administrator to properly evaluate his alternatives?" Such groups should be able to use the Forest Service Handbook's section on recreation planning as a guide to help them determine what questions to ask 74Personal interview, March 26, 1970, Washington, D. C, 75On this general subject see the "Scope of review and administrative discretions," section of Opinion by Judge Tamm in the case of Medical Committee for Human Rights 2; Securities and Exchange-COmmission, U.S. Court of‘Appeals for the District of Columbia Circuit, No. 23, 105, decided July 8, 1970, reprinted in the July 15, 1970 Congressional Record at p. H 6821. 277 Forest Service witnesses. The agency itself sets standards for its recreation planning. Plaintiffs' attorneys should be able to determine if, in the case at bar, these stan- dards have been met. The evidence as to who weighed what alternatives and made the decisions should be available to the court. Laches. Judge Kent leaned heavily on the doctrine of laches to support his dismissal of the Gandt plaintiffs' complaint. SOSAC's attorneys simply failed to place in the hearing record copies of the voluminous correspondence between the plaintiffs and the Forest Service which extended back to the time of the ad hoc committee meeting on Sylvania in September 1968 at Houghton, Michigan (see Dr. Culver Prentice's letter to Regional Forester James of September 30, 1968, at page lll,§pp£a.) as well as to Dr. Gandt's February 27, 1969 letter to Secretary Hardin (at page 125, £2252.) There also had been a number of face-to-face confrontations between the plaintiffs and the Forest Service between the time the 1968 management plan had been adopted and the time of the court hearing. These efforts to communicate never appeared in the hearing record. And so, while SOSAC attor- ney Reiter might claim that the application of laches to "amateurs" such as Jerry Gandt by the court was "incred— ible,"76 and that the corollary of the Gandt opinion is, 76Personal interview, Green Bay, Wis., July 28, 1970. 278 "When in doubt, sue," the Proceedings of the hearing indi- cate that evidence to counteract the government's lack-of- timeliness argument Simply wasn't introduced into the hear- ing record for Judge Kent to consider.77 Res judicata. The implications of this doctrine ("the matter has been decided") were discussed in the pre- ceding section, "How The Forest Service Views Its Sylvania Plan" (pp. 261-268, supra.) In Conclusion The Gandt v. Hardin case constitutes an example of a new nationwide phenomenon, namely citizen group-instiga- ted judicial review of Forest Service programs. Such liti- gation is expensive, time-consuming and potentially em- barrassing personally to the forest officers involved. 77Additionally, "the [Sylvania development] project was well underway, and laches came down hard" (Tony Ruckel, personal interview, Denver, Colo., Aug. 20, 1970) But see, Penngylvania Environmental Council, et al., v. Bartlett, et 51., 315 F.Supp. 238 (1970) at p. 246:”I"LaCheS*iS determined in the light of all the existing circumstances and requires that the delay be unreasonable and cause pre- judice to the adversary. Sobosle v. United States Steel Corp., 359 F.2d 7 (3rd Cir. 1966). The mere lapse of time is not sufficient to constitute laches. Ritter v. Rohm & Haas Co., 271 F.Supp. 313 (S.D.N.Y. 1967). In the circum- stances of this case, I cannot find with absolute certainty that the plaintiffs knowingly slept on their rights. Granted that suit was not begun by plaintiffs until ninety days after the awarding of the construction contracts, but this is not the kind of deliberate delay with which we are nor- mally confronted in laches situations. Here, the Pennsyl— vania Environmental Council, Inc. was not incorporated as a non-profit corporation until January 30, 1970, and had its first organizational meeting on March 14, 1970. The 279 Forest officers do not like this questioning of their admin- istrative discretion, their professionalism, and their com- petence. But, as U.S. Attorney Nelson Grubbe put it in his February 10, 1970 remarks in Milwaukee, In tomorrow's cases we will be presenting evidence on the effect [of management and development programs] on the environment. . . . [This] will place a heavier burden upon the administrator to justify his decisions that may change the environment. The technique of pp: taining public involvement and acceptance of forestry programs . . . [now] plays a major role in our work in public lands. . . . [emphasis supplied] The Chief of the Forest Service, Edward P. Cliff, in a statement prepared initially for delivery to the ap- propriations subcommittees of the Congress in October 1970 and later sent to all of the agency's field personnel, also hit on the necessity for early public involvement in the Forest Service's decision-making process. The chief stated bluntly: We are already involved in a number of lawsuits re- flecting public awareness of our activities. The pub- lic is increasingly unhappy with us.78 This will continue until we get balance and quality into our program, as well as public involvement in our decisions [emphasis supplied]. present suit was instituted on March 31, 1970. Under these circumstances, there was no unreasonable delay on the part of the Pennsylvania Environmental Council, Inc., in bring- ing suit. . . ." 78E.g., U.S., Congress, Senate, Committee on Inter- ior and Insular Affairs, A University View of the Forest Service, prepared by a Select Committee ofdthe University of Montana, Senate Document NO. 91-115, 9lst Cong., 2d Sess., 1970, 33 pp. 280 If the result of cases such as Gandt v. Hardin has been to encourage the Forest Service to "get balance and quality into [its] program," they may be considered to have been worthwhile. APPENDICES ~ APPENDIX A FINANCIAL COMPENSATION TO LOCAL GOVERNMENTS FOR FEDERAL ACQUISITION OF SYLVANIA 281. UNITED STATES DEPARTMENT OF AGRICULTURE FOREST SERVICE 633 West Wisconsin Avenue Milwaukee, Wisconsin 53203 2360 r Honorable Philip A. Hart United States Senate 01d Senate Office Building Washington, D. C. 20510 Dear Senator Hart: On December 14 you requested figures on payments that have been made to Gogebic County and Watersmeet Township which could be con- sidered financial compensation in connection with the acquisition of Sylvania. We regret we could not reply sooner, but it required considerable research to compile information which would be of value to your constituent. There are three categories we have considered as "contributions in kind." These are defined as expenditures which the county or town- ship would be willing and able to make in the absence of federal out- lays. We have included two road construction projects in this cate- gory. The third is dollars generated by Sylvania which consequently flow through the local economy. Sylvania visitors are the principal source of this income. Areas we have not treated would include the renovation or establish- ment of business enterprises which have resulted from a public Sylvania. For example, an outfitter has established a business solely because of Sylvania. A sporting goods store, a gasoline station, and several resorts have added canoe rentals to their services. Increased business because of Sylvania has permitted some establishments to renovate their structures. The Forest Service has hired more people and locally con- tracted more services. All these and more are benefiting the local economy through improved personal income and increased property values. It is difficult to present the complete picture concerning "contri- butions to local governments." There seems to be no limit to the depth one could go to make a full analysis. Attached is a chart indicating some of the returns to Watersmeet Township and Gogebic County as a result of Sylvania acquisition. Some explanation concerning this chart follows: 6200-11 (1 69) 1282 Column 2. These amounts are direct payments which have been made to the‘Watersmeet School District as authorized by Public Law 874 of the 8lst Congress as amended. This law provides for compensation to local school districts in federally impacted areas. Under definitions in the law, the Watersmeet School District became eligible for these payments as a result of the Federal Government acquiring Sylvania. Since schools are a major item in the distribution of any tax dollars, these payments are significant to this small school district. Column 3. Under the Receipts to States Act of 1908, 25 percent of all receipts sent to the United States Treasury by the Ottawa National Forest are returned to the counties within which the Forest lies. These returns are earmarked for county road and school purposes. The distribution to counties is based on the percent of National Forest land in each county according to General Land Office acres. The acquisition of Sylvania entitled Gogebic County to a greater share of 25 percent fund receipts beginning in 1966. Since meandered lakes are not included, Sylvania involved an increase of 14,890 acres to Gogebic County's list of eligible lands. The returns per acre have been: 1966 - 11.97 cents 1967 12.20 cents 1968 11.48 cents 1969 - 11.50 cents 1970 11.93 cents These returns per acre will vary and annually reflect timber market conditions, recreation seasons, sale of commodities such as sand and gravel, and fees for special land uses. Column 3 shows the total of 14,890 acres times the return per acre as listed above. Column 4. In 1969 Thomas Kelley, under the direction of Professor C. R. Crowther and Michigan Technological University at Houghton, Michigan, prepared a thesis entitled, "Sylvania Recreation Area and Its Local Economic Influence, 1966-1969." Based on interviews conducted in Sylvania, Mr. Kelley determined each Sylvania visitor spent an average of $3.22 in Watersmeet Township. Using this figure, we determined the amount visitors spent in Watersmeet by years since Sylvania was opened to the public in April of 1967. 1283 Unfortunately there have not been any other Sylvania visitor studies which provide an indication of recreation visitor economic impacts. Further, we realize the amounts a visitor is apt to spend in any year is dependent on general economic conditions. We believe using Mr. Kelley's figure pre- sents a fair comparison for the time span, 1967 through 1970. Hopefully, future studies will provide better information. It is interesting to note a decrease in 1970 over 1969. This was pri- marily due to construction projects making desirable areas such as the beach and picnic grounds at Clark Lake, inaccessible during most of the summer months. This will not be a problem in 1971, and we anticipate an increase over the 1969 figure. Column 5. This figure is the amount spent by the Forest Service to date on the reconstruction of County Highway 535. This road, known as the Thousand Island Lake Road, passes across the north edge and provides access to the Sylvania entrance road. The Forest Service assumed the obligation to reconstruct this road in the early negotiations with Gogebic County which led to the county's approval of the acquisition of Sylvania. This road is a direct economic benefit to Watersmeet Township and Gogebic County. Reconstruction was required, and it is being accomplished by the Forest Service, not the local governmental units. The road will be turned over to Gogebic County for maintenance after construction is completed. It is shown only as a total investment to date since it is a project not associated with annual returns. Column 6. As with County Highway 535, the Forest Service, in the nego- tiations with Gogebic County, agreed to reconstruct County Highway 527, the Bass-Beatons Road. This road is also located in Watersmeet Township. The above discussion concerning 535 also applies to 527, except that 527 does not pass through Sylvania. Some other pertinent information, aside from that mentioned in the at- tached chart should be mentioned. Although recent budget limitations. have not permitted the Forest Service to accomplish fully its planned development, much has been accomplished. Investments in Sylvania since acquisition include: Road Construction $ 895,000 Recreation Construction 325,000 Total Sylvania Development $1,220,000 284: In addition, the Sylvania Visitor Center at Watersmeet was completed this year. The total cost of the project was $463,000. We hope you will help us dedicate it this summer and will write you later regarding dedication plans. It is expected to attract 50,000 visitors in 1971. In 1966 during the period of negotiations with Gogebic County, the Forest Service agreed to renovate the Black River Harbor area as soon as pos- sible. The county was particularly interested in this project since it is one of the most significant recreation areas in the Upper Peninsula. Again, good strides have been made. To date $408,000 has been invested in this work. Plans for a new marina have been completed and await funding. In summary, Sylvania's full worth has not yet been approached nor its beneficial effect fully felt by adjoining communities. This can only be accomplished as an orderly program of development is completed and Sylvania is "discovered" by recreation visitors. Full development also presents a challenge to maintain high standards of operation and main- tenance in keeping with the outstanding natural resources involved. An austere budget period has caused some difficulties, but Sylvania has received fair treatment and we are very appreciative of your helpful efforts in appropriation actions. If we can be of any further service, just let us know. Sincerely, VA(3£%~E£ELENS) VRegional Forester Enclosure 285 DIRECT SYLVANIA RETURNS TO WATERSMEET TOWNSHIP & GOGEBIC COUNTY 1966-1970 (1) (2) (3) (4) (5) (6) Return from Reconst. Reconst. Public Law Recreation County County 874 25% Fund Visitors Hwy. 535 Hwy. 527 1966 $ - $1,782 $ - $ - $ 1967 $ 37,132 $1,816 $ 24,100 $ - $ - 1968 $ 42,647 $1,709 $ 53,100 $ - $ - 1969 $ 48,396 $1,712 $ 64,400 $ - $ - 1970 $ 44,725 $1,776 $ 49,100 $ - $ - Total $172,900 $8,795 $190,700 $469,200* $232,032** *An estimated $98,300, programmed in FY 71, will complete this project. **An estimated $413,532 is programmed to complete this project within the next 3 years, depending on.the availability of funds. TOTAL 1966 - 1970: $1,073,627 APPENDIX B OPINION OF THE COURT 286 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION DR. JERRY GANDT, et al., Plaintiffs , vs. Civil Action CLIFFORD HARDIN, et al., No. 1334 Defendants. v00 v00 vn v00 v OPINION OF THE COURT DATE: December 11, 1969 PLACE: Marquette, Michigan BEFORE: Honorable W. Wallace Kent, Chief Judge APPEARANCES: MR. FRED A. REITER De Pere, Wisconsin and MR. H. ANTHONY RUCKEL Denver, Colorado On behalf of Plaintiffs; MR. JOHN MILANOWSKI United States Attorney Grand Rapids, Michigan and MR. NELSON H. GRUBBE Department of Justice Washington, D. C. On behalf of Defendants. RUTH G. PRICE. CSR OFFICIAL COURT REPORTER UNITto STATES DISTINCT COURT KALAMAZOO. MICHIGAN 49005 287 OPINION OF THE COURT THE COURT: This action for declaratory judgment and injunctive relief was brought pursuant to Section 10 of the Administrative Procedure Act. 5 USCA Sections 701 through 706, the Declaratory Judgment Act, 28 USCA Sections 2201-2202, and Sections 1331, 1346, and 1361 of the judicial code, which is Title 28, USCA. The plaintiffs ask that this Court declare certain of the activities being engaged in at the behest of the defendants in that portion of the Ottawa National Fbrest known as the Sylvania Tract are improper in view of the congressional directives found in the Multiple-Use Sustained-Yield Act of 1960, 16 USCA Sections 528-531. Plaintiffs have dropped any claims asserted under the National Wilderness Preservation System Act, 16 USCA, Section 1131, and under the Endangered Species of Fish and Wildlife, 16 USCA Seetion 68(aa). The plaintiffs claim that the defendants have arbitrarily and capriciously begun to cut and clear tree and other growth within the Sylvania Tract 'for the purpose of building a permanent road; and they contend further that the defendants have acted arbitrarily and capriciously in entering into a logging contract with 2 RUTH 6 PRICE. CSR OFFICIAL COURT REPORTER UNITED STATcs DISTRICT COURT KALAMAZOO. MICHIGAN 49005 .....__-___..___. .‘ 288 Kimberly-Clark Company. It is the theory and claim of the plaintiffs that the defendants should be enjoined from implementing I the Sylvania Recreation Area and Management Plan. which is Exhibit 1 for the plaintiffs. The record shows that the government of the United States acquired this property in 1967 pursuant to an appropriation authorized by the Congress. Prior to the acquisition, as appears in the statements in the hearings before the House and the Senate, this land had been closed to the public for at least fifty years. It is the theory and claim of the plaintiffs that the tract has retained its primitive character during all of'this period, and they claim that it was unblemished by the use of man, which claim.has not been borne out by the evidence. Since it appears that the property had been privately owned by the Fisher family and others, and that houses and lodges and other outbuildings had been erected within the area, the immediate location of which has not been established by the evidence, there is some claim, but no evidence, that logging had been done in the area on prior occasions, but I don't recall any evidence to that 3 RUTH G. PRICE. CSR OFFICIAL COURT Renown ‘ UNITED STATes DIsTRICT COURT KALAHAZOO. MICHIGAN 49005 289 effect. I Basically, the claim of the plaintiffs is that the defendants have acted arbitrarily and capriciously by adopting a plan without full and proper consideration of all the factors required by the Multiple-Use Act. The subject of what constitutes arbitrary and capricious action by parties or agencies such as the defendants, since the agencies are necessarily involved, is covered and discussed in 73 CJS, Section 209, pages 568 and 569, under the heading Public Administrative Bodies of Procedure. And, without a direct quote, what the treatise says is that the unreasonableness and unlawfulness of agency action.mmst be clearly established by the evidence, and it must appear that the action of the agency was in effect malicious and illegal, and the principle of arbitrar$ action is not applicable if the action.was a rational action resulting from a consideration of the factors involved. The evidence shows that, so far as this Court is concerned on this record, that the Forestry Service and the Department sought the advice and counsel of many people, including some of the plaintiffs, with regard to the planning of the use of the Sylvania RUTH G. PlgICE. CSR OFFICIAL COURT RIRORTER UNITso STATss DIsTRICT COURT KALAMAZOO. MICHIGAN 49005 290 Recreation Area. The record shows that there was a dis-j cussion before the Congress indicating that it was intended that this should be a public recreation area. The basic objection is that the plan adopted in NoVember of 1968 and published and made available to and secured by at least one of the plaintiffs in January 1969 is arbitrary and capricious because it does not, under the plan, maintain the primitive character of a substantial portion, if not all, of the Sylvania Tract. There is no claim that the defendants did not seek and obtain advice from interested parties. I Now, at the outset let me say this, so there will be no misunderstanding: If this Court were faced with the decision as to the'use which was to be made of this tract, and have the authority to promulgate a plan, there are numerous aspects of the adopted plan which the Court would not like, one being the use of motors on lakes in an area such as this. Another would be the possibility I and it doesn't appear from the plan whether it is possible or impossible -- of the use of what are called snowmobiles or any other mechanical devices, creating such noise as is created by outboard motorboats and other similar devices, snowmobiles included. But that is a personal opinion. 5 RUTH G. PRICE. CSR OFFICIAL COURT RsFORTeR UNITED STATcs DIsTRICT COURT KALAMAZOO. MICHIGAN 49005 291 The first question which must be answered before any other question is considered is whether the United States has waived sovereign immunity and authorized judicial review of actions of the type challenged here. While the suit names the Secretary of Agriculture and certain of his aides and assistants as defendants, it is clear to this Court that in reality it is an action against the government of the United States of America. The Fifth Circuit discussed the historical background for the tendency to name individuals within the government as defendants when actually seeking relief against the government, in Estrada against Ahrens, 296 F.2d 690, and particularly at page 698. From that it appears to this ‘Court that the plaintiffs are certainly not seeking relief against the named defendants as individuals; as a matter of fact, the Plan was implemented with a different individual as Secretary of Agriculture. As to change of personnel of the other individuals named, this Court is in no position to state from the record whether or not each of them held the same position at the time the land was acquired and at the time the Plan was adopted as is held now. But from.that, we Can reach only the conclusion that this suit in reality is against the government of the RUTH G. PRICE. CSR OFFICIAL COURT ReFORTrR UNITeo STATss DIsTRICT COURT KALAMAZOO. MICHIGAN 40005 292 United States, in an effort to stop the government from. implementing Management Plan Exhibit 1. In determining whether or not there has been a waiver, whether there has been proper consideration of the area, we must go to the Act, the HUltiple-Use SustainedT Yield Act, 16 USCA Section 529, which states in part: a '. . . The establishment and maintenance of areas of wilderness are consistent with.the purposes and provisions of sections 528-531 of this title." There is, however, no actual specific waiver of sovereign immunity. The plaintiffs rely upon the Administrative Procedure Act, 5 USCA Section 701-706. Two portions of Section 10 of the Administrative Procedure Act 5 USCA, Sections 702 and 704, provide pertinent information. “Section 702 provides: "A.person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." Section.704 provides in part: 7 RUTH 6. PRICE. CSR OFFICIAL COURT RIRORTIR UNITsD STATss DIsTRICT COURT KALAMAZOO. MICHIGAN 40003 293 "Agency action made reviewable by statute and final agency action for which there is no other adequateremedy in a court are subjeCt to judicial review: . .' The statutory provisions demonstrate to this Court the desire on the part of the Congress to make final agency action reviewable in the federal courts unless otherwise provided. In that connection, one should examine Abbott Industries varsus Gardner, 387 U.S. 136, where the Court says at Page 141: "The legislative material elucidating that semdnal act.mmnifests a congressional intention that it cover a broad spectrum of administrative action, and this Court has echoed that theme by noting that the Administrative Procedure Act's 'generous review’provisions' must be given a 'hospitable' interpretation. (Citing authorities.) Again in Rusk v. Cort, the Court held that only upon a showing of 'clear and convincing evidence' of a 8 RUTH 6. PRICE. CSR OFFICIAL COURT RIFORTrR URITeo sTATes DIsTRICT COURT KALAMAZOO. MICHIGAN 49005 294 contrary legislative intent should the courts restrict access to judicial review." The Act at 5 USCA Section 701 enumerates those actions which are not reviewable, and includes under Subsection (a) cases where statutes preclude judicial review, and second, where agency action is committed to agency discretion by law. The question of discretion is discussed in Knight Newspapers, Inc. versus United States, 395 F.2d 353, a decision by the Court of Appeals for this Circuit in 1968, where it is said at Page 358: 'A.court may not review a decision committed to the discretion.of an agency pursuant to a permissive type statute, but may do so where the decision was made pursuant to a mandatory type statute, even though the latter decision involves some degree of discretion", to the same effect as Freeman versus Brown, 342 F.2d 205, a Fifth Circuit decision in 1965. We must, therefore, analyze the MUltiple- Use Sustained-Yield Act to determine whether or not decisions made under that Act are subject to judicial 9 RUTH G. PRICE. CSR OFFICIAL COURT RsFORTeR UNITeD STATes OIsTRICT COURT KALAMAZOO. MICHIGAN 49005 295 . i I review. The Act provides in pertinent part, 16 USCA Section 528: "It is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes . . ." It further provides in Section 529 of the same title: "The Secretary of Agriculture is authorized and directed to develop and administer the renewable surface resources of the national forests for multiple use and sustained yield of the several products and services obtained therefrom. In the administration of the national forests due consideration shall be given to the relative values of the various resources in particular areas . . ." The cited portions of the Act indicate that Congress intended to make certain actions on the part of the Secretary of Agriculture mandatory in determining proper management of national forests. And it should be 1% RUTH G. PRI E. CSR OFFICIAL COURT RrFORTtR UNITED STATrs DIsTRICT COURT KALAMAZOO. MICHIGAN 49003 296 noted that there is no express provision in the Act which precludes judicial review or which specifically commits agency action under the Act to complete agency discretion. In the legislative history it appears in U.S. Code Congressional and Administrative News for the 86th Congress, Second Session, at Page 2378, in the discussion of the bill: ’ "The purpose of this bill is to provide a direction to the Secretary of Agriculture to administer the national forests for multiple use and sustained yield of their several products and services. It would name in a single statute the renewable surface resources for which the national forests are established and shall be administered." The House Report goes on to say at Page 2378: '. . . there are four basic reasons for the enactment of this bill: (1) There should be a statutory directive to administer the national forests under sustained yield: (2) there should be a similar directive o administer the RUTH G. l CE. CSR OFFICIAL COURT RsFORTsR UNITCD STATIC DIOTRIC‘I’ COURT KALAMAZOO. MICHIGAN 40005 297 national forests for multiple use . . ." Thus it is clear that the Act was designed as a directive to the Department of Agriculture as to what factors should be considered in determining how the various national forests are to be developed. The Congress was not enacting a permissive statute, but rather adopted a mandatory. statutory list of factors to be considered in the development of the national forests. Consequently, it appears beyond doubt that there is no "clear and convincing evidence” as stated in the cases that Congress intended that the Secretary of Agriculture's actions which effect the implementation of ' the Act should be beyond judicial review; rather, in view of the fact that the Act is mandatory instead of permissive it seems clear to this Court that the Secretary's actions. when they seem to be in contravention of the Act, are subject to judicial review, as set forth in Knight Newspapers agath United States previously cited, where the Court concludes that it is subject to review. The next question which is presented to the Court is the standing of the plaintiffs to appear in this court and challenge the action of the Secretary and those who work under him. I 12 RUTH 6. PRICE. CSR OrncIAL Count Irroml Um'ren Cures DnsflucT Count KALAMAZOO. MICHIGAN 49005 ._.-_-.—_. ... f 298 The concept of "standing" comes under Article III. Section 2. of the United States Constitution. which permits this Court to consider cases in controversies to which the United States shall be a party under the laws of the United States. This was interpreted in Flast versus Cohen, 392 U. S. 83. a 1968 decision. where the Court said: ". . . in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. It is for that reason that the emphasis in standing problems is on whether the party invoking federal court jurisdiction has 'a personal stake in the outcome of the controversy,’ " -- citing Baker versus Carr -- "and whether the dispute touches upon 'the legal relations of parties having adverse legal interests' ". citing Aetna Life Insurance Co. versus Haworth. In Flast, the Court also made the following 13 RUTH (3. PRICE. CSR Orncuu. Coos? Rev-ours waeo Cures Dusfluc'r Coue'r KALAMAIOO. MICHIGAN 49005 299 reflections: "The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. The 'gist of the question of standing' is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.'. In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable', which issue we have already decided The Court went on to say in Flast: "We have noted that. in deciding the question of standing, it is not relevant 14 RUTH 6. PRICE. CSR Orncuae COURT REPORTER Darren Starts DIs‘rmc'r Cous‘r KALANAZOO. MICHIGAN 4.008 300 that the substantive issues in the litigation might be nonjusticiable. However. our decisions establish that, in ruling on standing. it is both appropriate and necessary to look to the substantive issues for another purpose, namely. to determine whether there is a logical nexus between.the status asserted and the claimlsought to be adjudicated . . ." In the more recent case of Jenkins versus ‘HcKeithen, 395 U.S. All. the Court said: ”The concept of standing to sue, as we noted in Flast v. Cohen, 'is surrounded by the same complexities and vagaries that inhere in the concept of justiciability' in general. Nevertheless, the outlines of the concept can be stated with some certainty. The indispensable requirement is, of course, that the party seeking relief allege 'such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon 15 RUTH G. PRICE. CSR Orrucuu. Count REPORTER Umren Sun-u Dlsfluc'r Com" KALANAZOO. MICHIGAN 49008 _ .m»~.“.— 301 which the court so largely depends for illumination of difficult constitutional questions . . .' ", citing Baker versus Carr and other cases. "In this sense, the concept of standing focuses on the party seeking relief, rather than on the precise nature of the relief sought." Plaintiffs contend that they have the requisite standing by virtue of that portion of Section 10 of the Administrative Procedure Act which provides: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a'relevant statute. is entitled to judicial review thereof." The plaintiffs contend that they have been adversely affected and aggrieved by the Sylvania Recreation Area Management Plan. The meaning of the term "aggrieved” has been the subject of much judicial commentary. In Utility Users League versus Federal Power Commission, 394 F.2d 16, a 1968 decision. the Seventh Circuit said at Page 19: "The term 'aggrieved party' has long RUTH G. PJIQE. CSR Orncut Cous‘r Revenue - anen Cures Dusfluc'r Coon? KALAHAZOO. MICHIGAN 49005 302 eluded precise definition, and, as the Supreme Court has noted, its meaning 'is in any event more or less determined by the specific circumstances of individual situations.‘ Clearly, a petitioner for review need not show injury to a personal economic interest." And cites Scenic Hudson, to which there has been previous reference, and which we will now refer to. In Scenic Hudson Preservation Conference versus Federal Power Commission, 354 F. 2d 608, a Second Circuit decision, the Court said at Page 616: "In order to insure that the Federal Power Co-ission will adequately protect the-public interest in the aesthetic, conservational, and recreational aspects of power development, those who by their activities and conduct have exhibited a special interest in such areas, must be held to be included in the class of 'aggrieved' parties under §313(b)." We concede, and I think everybody will concede, that Scenic Hudson is a landmark case. That 17 RUTH 6. PRICE. CSR Orncut Count Renontrn Umteo STATE! Dustnuct Count KALAMAZOO. MICHIGAN 49008 303 decision was discussed by a District Judge in Road Review League, Town of Bedford versus Boyd, 270 F. Supp. 661, a 1967. decision in the Southern District of New York, where Judge McLean, at Page 660, says in part: to say: "I have based my decision" -- as to the plaintiffs' standing -- "upon the implications, rather than the exact holding, of the recent decision of the Court of 9 Appeals in Scenic Hudson." It says further on: ”The Admins trative Procedure Act (5 U.S.C. §702) entitles a person who is 'aggrieved by agency action within the meaning of a relevant statute' to obtain judicial review of that action.” Then Judge McLean at a later point goes on "I have concluded that these provisions are sufficient, under the principle of Scenic Hudson, to manifest a congressional intent that towns, local civic organizations, and conservation groups are to be considered 'aggrieved' by agency action which allegedly . 18 RUTH G. PRICE. CSR OFFICIAL Count anonttn UNITED States DIsTnIct Count KALAMAZOO. MICHIGAN 40008 304 has disregarded their interests. I see no reason why the word 'aggrieved' should have a different meaning in the Administrative Procedure Act from the meaning given to it under the Federal Power Act." And we agree with Judge McLean in that respect. Then he goes on with the "private attorney general" concept, which is not necessary to be extended at this time. .In any event, based upon the authorities which have been reviewed, this Court has reached the con- clusion that these parties plaintiff have standing in this court. ' ' another issue of law is presented, and that is the issue as to the timeliness of the filing of plaintiffs' action. Timeliness is basically, as pointed out by counsel for the plaintiff, an issue of laches, laches being a very technical term. the Supreme Court in Abbott 1‘50““??1.“ versus Gardner, a previously cited case, in discussing the declaratory judgment statute, points out at‘Page 155 as follows: RUTH G. PRICE. CSR OrrIcIAL CaunT REPORTER UNITrn STAT“ DIsTnIcT COunT KALAMAIOO. MICHIGAN 49005 I ". . the declaratory judgment and injunctive remedies are equitable in nature, and other equitable defenses may be interposed." As, for instance, "The defense of laches could be asserted if the Government is prejudiced by a delay." And they cite, in that connection, an earlier decision in Southern Pacific Co. versus Bogert, 250 U.S. 489, in which admittedly a great period of time had elapsed, but the Court pointed out: "Here plaintiffs, or others representing them, protested as soon as the terms of the reorganization agreements were announced: and ever since, they have with rare pertinacity, and undaunted by failure, persisted in the diligent pursuit of a remedy, as the schedule of the earlier litigation referred to in the margin demonstrates." That was cited by the Supreme Court in Gardner. This Court is of the opinion that they might better have cited Penn Mutual Life Insurance Co. versus Austin, 168 U.S. 685, where in an opinion by Mr. Justice 20 RUTH G PRICE. CSR OFFICIAL Count Renontrn UNITID STATes DIstnIct Count KALAMAZOO. MICHIGAN 49005 306 White the Court said: "Independently of any statute of limitations, courts of equity uniformly decline to assist a person who has slept upon his rights and shows no excuse fer his laches in asserting them. . . . 'Laches and neglect are always dis- countenanced: and therefore from the beginning of this jurisdiction there was always a limitation to suite in this court.’ " This is at Page 696. And it goes on to say at Page 697: ”The question of laches turns not simply upon the number of years which haveelapsed between the accruing of her rights, whatever they were, and her assertion of them, but also upon the nature and evidence of those rights, the changes in value, and other circumstances occurring during that lapse of years.” There is a greater discussion of the issue of laches as it goes on. Perhaps the one most applicable to this 21 RUTH G PRICE. CSR ONICIAL Count Reeontsn Umuo Butts DIsTnIct Count KALAMAZOO. MICHIGAN 49005 307 situation is in an opinion written by Judge Shelbourue. a District Judge in the Western District of Kentucky, well known to this Court, at 189 F.Supp. 821 where, at Page 826 . the Court said, speaking through Judge Shelbourne: "There is no fixed rule by which to measure the degree of laches which is sufficient to bar the enforceflfint of a right. Each case must be determined according to its own particular facts and circumstances." In the opinion of this Court, the areas of law have been investigated, and it is necessary, then, to apply them.to the facts and, in this situation, the plaintiffs are in rather dire shape. All that they have shown is that they want to substitute the judgment of their witnesses and themselves for the judgment of the Forest Service. They make a challenge to the action of the Department and the Forestry Service, and claim that they have not complied with the Multiple-Use Sustained-Yield Act. They have not carried out the burden of proof in that connection, and it is axiomatic the burden of proof in connection with an action such as this is completely upon the plaintiffs. They can only prevail if they can 2 RUTH G. PRICE. CSR OFFICIAL Count RrFonten Umteo STATts DIsTnICT Count KALAMAZOO. MICHIGAN 40005 '308 establish by clear and convincing proof that the action Hf of the defendants is arbitrary and capricious and not in accordance with law. This they have failed to do. The evidence is not only not clear and convincing, there just plain isn't any evidence of any failure on the part of the defendants to consider all of the factors. So it appears to the satisfaction of the Court that the challenge of the plaintiffs is not to the defendants' failure to consider the factors: rather, the challenge is as to the decision reached by the defendants after considering the factors, and that, except as it may be arbitrary and capricious, is not for this Court to review. There is no evidence in this case that any action taken is arbitrary or capricious.‘ That would be sufficient to decide the case, but in addition this Court is completely satisfied, as probably was evidenced during the course of the hearing, that if there ever was anybody who was guilty of laches, it was the plaintiffs in this case, and particularly the Number One and apparently principal plaintiff, Dr. Jerry Gandt. He had a copy of Exhibit 1 for the plaintiffs almost as soon as it was printed. He had access to the personnel of the Forestry Service, he had access to the 23 RUTH G. PRICE. CSR OFFICIAL CounT ReFonTsn UNITso STATes OIsTnIct Count KALAMAZOO. MICHIGAN 49005 309 area, he knew from the plan, as would anybody else, what use was anticipated to be made of the area. It would appear obvious, or certainly the information was readily available to him, that there would be some contracting done for cutting of timber and for clearing of areas for road construction. It appears right in the plan that that was contemplated. It would be incumbent upon him, then, to seek the information as to when it was going to be done. And there is nothing in this record to show that any defendant or anybody working under the defendants has ever withheld any information from the plaintiff, Dr. Gandt. And I presume that there was commication between him and the other plaintiffs; the Court is forced to assume that, since they joined-in this action. To permit the govermnent to enter into these contracts for the cutting of certain areas of timber, to permit the government to enter into contracts for and coll-ence upon the construction of roads pursuant to the plan without in any way challenging, so far as this record shows, the actions, it appears to the Court to be laches as described in every case which this Court has ever read. It is true that it was only a period of months, but it was obvious, or should have been obvious at the time when the 24 RUTH G. PRICE. CSR OFFICIAL Coua'r RIPOI‘I’II Umnn Starts Dlsflllcr Coon? KALAMAZOO. MICHIGAN 49008 ll 310 plan was presented and made available, that it was not anticipated that a long period of time would pass before it would be at least partially implemented. So the plaintiff has been guilty of laches, in the opinion of this Court. ButAbasically, we are satisfied that, as a practical matter, the plaintiffs have not sustained the burden of proof; they not only have not established by clear and convincing evidence, they have not even established by any evidence that this Court would consider would require the defense to go to their proofs, that there was any fault on the part of the defendants in the action taken. In other words, this Court is satisfied that, Ito permit the case to go on and substitute this Court's judgment for the judgment of the Forestry Service, would be a clear case of arbitrary action and abuse of discretion on the part of the Court. So, for the reasons stated in the Court's opinion, which will stand as the Court's findings of fact and conclusions of law, the application for an injunction is denied and the complaint is dismissed, and you may present an order to that effect. I asst-e, Mr. Reiter and Mr. Ruckel, that there is no question, in the light of the order for hearing 25 RUTH G. PRICE. CSR Orncnat couer Reroute Umreo Crane DIGTIIC‘I’ Coon? KALAMAZOO. MICHIGAN 49005 311 signed by the Court, but what this case was to be brought on on its merits and for final disposition? HR. RUCKEL: That is correct, your Honor. tut count: All right. You may present the order. The Court will adjourn. CERTIFICATE OF REPORTER 1, Ruth C. Price, Official Court Reporter for the United States District Court, Western District of Michigan, do hereby certify that the above and foregoing is a full, true and correct transcript in this matter, according to my original stenographic notes. ,5 sum e. um: 26 RUTH G. PRICE. CSR Orncm. Count RIPORTII Umno Intro Distalct Count KALAMAZOO. MICHIGAN 49008 APPENDIX C CONTRACT BETWEEN THE FOREST SERVICE AND MICHIGAN STATE UNIVERSITY 1112 - . v-Omwmmfl-uwfitfivtf “ —: T c M‘ , -... _ t _ . - W I- --- -' ___.. .fs!‘:s¢»--.u . ~ EnfiMSeverabIeu- BasicmAppliedM- COOPERATIVE AGREEMENT SUPPLEMENT no. 20 to MASTER MEMORANDUM OF UNDERSTANDING OF DECEMBER 6,1961 between THE FOREST SERVICE, U. S. DEPAR’DIENT OI" AGRICULTURE and MICHIGAN STATE UNIVERSITY Contract No. 12-11-009-22423 STUDY TITEE: A study of litigation related to'management of Forest Service lands and its effect on policy decisions. WORK UNIT NO. FS-NC-4201. WHEREAS, the parties hereto have heretofore executed a Memorandum of Understanding effective December 6, 1961, authorising and providing for cooperation in forestry research of mutual interest; and WHEREAS, the parties hereto are mutually interested and desire to c00perate (l) in encouraging students to take graduate work in forest policy and (2) in conducting certain studies relating to studies of forest policy more particularly and fully described as follows: The systematic investigation of legal decisions on forest policy and the relationship of lawsuits to forest policy decisions. now, ransom, ' _ "" A. The Forest Service Agrees to: - , l. Collaborate with the University in preparing mutually ~ acceptable detailed plans for the study. _,2. Make available its equipment, files, and materials, as ‘e'arranged for with the Division of Information and Education, ”Forest Service, U. S. Department of Agriculture, washington, 'D. C., and required to facilitate conducting the study. 3. Provide access to Forest Service lands and areas on which ' t .to conduct the study and help in selecting specific study locations. '. , . . 4. Reimburse the University for its direct costs for the items listed below, applicable.to the work under this Agreement, in addition to any other Forest Service contribution in the form of services and supplies, but not to exceed a total of c. The l. :2. 3. 3JJ3 2 $2,700.00 as shown in the estimated budget marked Exhibit A which is attached and made a part of this Agreement. Payments to the University will be made upon receipt of itemized expenditure statements from the University as provided for in the Easter Memorandum of Understanding or amendments thereto. a. .Salaries and wages of laboratory assistants, laborers, ‘etc., and/or services of graduate student(s) on research work. b. Supplies and materials. c. Services of contractors, or direct charges of service branches of the University. d. Travel necessary in carrying on the research study. University Agrees to: Conduct this research in accordance with the study plan and terms of this Agreement, complete the study, and prepare a report on the results by December 31, 1970. Assist the Forest Service in selecting research areas. Provide leadership and supervision essential to the , satisfactory carrying out of the study. , Provide laboratory facilities and other equipment and materials available and needed on the study. Employ and supervise personnel in the conduct of the study. lArrange for interdepartmental assis tence essential to the ,Jconduct of the study. Z‘Provide the Forest Service with four copies of the final report of the results of this study. Both Parties Agree: 1. ,Thst this Agreement may’be terminated by either party by A giving 60 days notice to the other in writing. 2. That all provisions of the Master Memorandum are applicable to this Supplement. . 314 -A‘A mg...) a; . ,_ _ _-a. -A u. a“ a; A _ —- '— w-mm-“rf‘; ..‘ h ‘ .: . «modicum l4“ ”M44154 ‘3’ J1: a *..‘.~..:;, J.“ _ , III WITNESS “1138801,“ the parties hereto have executed this Supplemental Agreement this 23“ day of March , 1970. ' FOREST SERVICE, U.S. DEPARTMENT'OP ‘ AGRICULTURE -. North Central Forest'Experiment Station . . ‘ ‘ \ , By 3 fl / {DA—9 V DIRECTQR ‘7 ' MICHIGAN STATE UNIVERSITY 7/ 43W: or m B. ,Terry, admin. Assistant to flee President for Business and Finance ' V 315 APPENDIX TO COOPERATIVE AGREEMENT SUPPLEMENT NO. 20 to MASTER MEMORANDUM OF UNDERSTANDING OF DECEMBER 6, 1961 between THE FOREST SERVICE, U. S. DEPARTMENT OF AGRICULTURE and MICHIGAN STATE UNIVERSITY Contract No. 12-11-009-22423 Work Unit No. FS-NC-4201 EXHIBIT A -- ESTIMATED BUDGET Personnel: Amount to be expended: $1,500.00 Technician: M. Rupert Cutler Supplies and Services: Amount to be expended: 1,200.00 General nature of expenditures: Travel related to project: typing: photocopying: duplicating. Grant Total: $2,700.00 APPENDIX D SECRETARY'S MEMORANDUM NO. 1695, SUPPLEMENT 5 316 UNITED STATES DEPARTMENT OF AGRICULTURE OFFICE OF THE SECRETARY WASHINGTON, o. c. 20250 December 1, 1970 SECRETARY'S NIEMORANDUM NO. 1695, SUPPLEMENT 5 Providing Timelx Information to the Public About USDA Plans and Programs with Environmental Irnpact to Obtain the Views of Interested Parties DIRECTIVE. USDA agencies will use appropriate procedures (1) ". . . to ensure the fullest practicable provision of timely public information and understanding of Federal (USDA) plans and programs with environmental impact in order to obtain the views of interested parties. "; and (2) to provide relevant ". . . information on alternative courses of action," as required by Executive Order No. 11514 of March 5, 1970. ' : POLICY. The public is to be informed. The Department of Agriculture will expand and, wherever possible, iInprove procedures for providing information to the public and for obtaining and considering local, regional, and national views on matters relating to the environment. It is an objective of the Department to involve the public in developing its policies and in formulating and iInplementing its programs. It will discharge its environmental re5ponsibilities in ways that make its management processes visible and its people accessible. In obtaining the views of interested agencies, organizations, groups, and individuals, USDA will utilize the wide geographic distribution of its staff trained in many disciplines and functions related to the environment. PROCEDURES. Among procedures to be used by USDA to provide timely public information about plans and programs with environmental impact and to obtain the views of interested parties are: Direct verbal contact - Person to person at all organizational levels with individuals or groups 317 Meetings Conferences, seminars, workshops, town meetings, tours Organized groups, boards, associations, or societies Scientific or professional societies Advisory groups Information aids - Visual aids, pamphlets, leaflets, brochures, flyers, newsletters, press releases, material for professional publications or house organs, written replies to inquiries I Use of public communications media for announcements, commentarLor dialogue ’ - Television, radio, neWSpapers, magazines, motion pictures Publication of findifls or summarization of'information — Bulletins, handbooks, papers in scientific or pro- fessional society journals, technical reports Public notices - Federal Register - Direct’mailing - Newspapers Circulation of draft project plans to interested Federal, State, and local agencies and other concerned organizations 318 Informal he aring (An informal hearing is one conducted by an appropriate official after due notice. Written and oral comments are received, and a summary statement of what transpired is prepared. ) Formal hearings (A formal hearing is one conducted by an appropriate official after due notice. _A verbatim record of oral testimony is prepared and all written statements are accepted for the record.) The foregoing procedures complement one another; best results are often obtained by using two or more of them. RESPONSIBILITIES AND GUIDE LINES. Within established delegations of authority and responsibilities for coordination, USDA agency heads are responsible for using appropriate procedures for informing the public and obtaining and considering the views of interested parties. Except for emergencies requiring prompt action, they will apply these . procedures sufficiently far in advance of proposed actions to permit adequate time for consideration and reSponse by the public. In most situations, procedures other than hearings will be applied to inform the public and obtain the views of interested parties. These general approaches will be applicable when the matter under conside ra- tion is local in nature and generally routine. In some instances, however, informal exchanges may reveal some unexpected controversy and thus the need for an informal or formal hearing. An informal hearing will be held when needed and the circumstances or requirements do not warrant a formal hearing. A formal hearing will be held in those instances where required by statute or executive order and may be held in other situations where it is deemed necessary. All hearings, formal and informal, shall provide notice sufficient to inform the public of the proposed action, its exPected effect on the environment, and the date, time, and place of the hearing. Notwithstanding other effective means of communication that may be employed, announcement of pending formal hearings to be held by a 319 USDA agency shall always be made in part by notice in the Federal Register well in advance (not less than 30 days) of the hearing dates. In implementing procedures for informing the public and obtaining views, care will be exercised to inform the general public as well as the people usually involved in Specific programs. If it is likely that interest in a proposed action will be more than local and may represent a broad-based concern, the information procedures to be used are to be extended to regional or national audiences. To assure effectiveness of the activities required by this memo- randum, agency heads will provide appropriate information and training for USDA employees to broaden their understanding of public affairs and/or procedures for obtaining and evaluating public Opinion. Each agency will issue suitable guidelines for implementing this W124; /M J. Phil Campbell Acting Secretary BIBLIOGRAPHY BIBLIOGRAPHY Public Document3~ Council on Environmental Quality. Environmental Qualit: The First Annual R_port of the Council on Env1ron- mentaI Qualit . Washington, D. C.:. U. S. Government Printing Office, 1970. Cunningham, R. N. Forest Resources of the Lake State Re ion. Washington: Governmentfi Printing Office, I§50 Mackenthun, K. M. et a1.Limnologica1 Aspectsgf Recreae tional Lakes. Washington: Government Printing Office (U. S. Department of Health, Education, and Welfare), 1964. Public Land Law Review Commission. One Third of the Nation' 3 Land. Washington, D. C.: U.S. Government Printing Office, 1970. Ripley, Thomas H. Recreation Im act on Southern A a- lachian Cam rounds and P1cn1c S1tes. AsheV1 le, North CaroIina: Southeast Forest Experiment Sta- tion Paper Number 153, 1962. Saylor, John P. "Series on 'Law and the Environment' (by Robert Cahn)." CongressionalRecord, October. 1969, pp. H9205“ ' H "' p H -' ’H9825' H9907-8. Saylor, John P. "Law and the Environment." Congressional Record, April 30, 1970, pp. H37747H37831 Selke, George A., Chairman. Report of the Magruder Cor- ridor Review Committee. Submittedfto the Secretary of Agriculture, April 17,1967. 320 321 Train, Russell E. "Memorandum to the Heads of Executive Departments and Establishments: Interior Guide- lines for Statements on Major Federal Actions Affecting the Environment Required by Section 102 (2) (c) of the National Environmental Policy Act of 1969 (P.L. 91-190)." Washington, D.C.: Execu- tive Office of the President, Council on Environ- mental Quality, April 30, 1970. Udall, Morris K. "The IRS and Public Interest Law Firms." Congressional Record, October 14, 1970, pp. U.S. Congress. House. Committee on Appropriations. Department of the Interior_§nd Related Agencies Appropriations forrl966. Hearings before a sfib- committee ofithe Committee on Appropriations, House of Representatives, 89th Cong., lst sess., 1965. . Department of_the Interior and Related Agencies ApprOpriations Bill,fl966. Conference rgport. House Report No. 513, 89th Cong., lst sess., 1965. U.S. Congress. House. Committee on Government Opera- tions. The Envirogmental Decade (Action Proposals for the 1970's). House Report No. 91-1632. Slst Cong., 2nd sess., 1970. U.S. Congress. House. Committee on Interior and Insular Affairs. Designation of Wilderness Areas. Hear— ings before a subcommittee of‘the Committee on Interior and Insular Affairs, House of Representa- tives, 913t Cong., 1969 and 1970. . Desi natin Certain Lands as Wilderness. Report No. 9I-IZZI,.9Ist Cong., 2nd sess., 1970. U.S. Congress. Senate. Committee on Appropriations. Department of the-Interior and Related Agencies' Apprgpriations. Hearin s before a sfibcommittee-of t e Committee on Appropr1ations, Senate, on H.R. 6767, 89th Cong., lst sess., 1965. . Department of the Interior and Related Agencies. Hearin s before a subcommittee of the Committee on ApprOpriations, Senate, 9lst Cong., lst sess., 1969. 322 U.S. Congress. Senate. Committee on Commerce. Environ- mental Protection Act of 1970. Hearings before a subcommittee of the Committee on Commerce, Senate, 91st Cong., 2nd sess., 1970. U.S. Congress. Senate. Committee on Interior and Insular Affairs. San Gabrielg Washakieg and Mount Jeffer- son Wilderness Area. Hearin s before a sfibcommit- tee of the Committee on Interior and Insular Af- fairs Committee, Senate, on S. 2531, S. 2630, and S. 2751, 90th Cong., 2nd sess., 1968. . Great Swamp; Pglicanlsland; Monomo ; Sene , Huron, Michigan Islands, Gravel IsIani, Gree Ba , and Moosehorn Wilderness Areas. Hearin s before a subcommittee of the Committee on,Inter1or and In— sular Affairs, Senate, on S. 3379, S. 3343, S. 3425, and S. 3502, 90th Cong., 2nd sess., 1968. . San Gabriel! Washakiei and Mount Jefferson Wil- derngss Areas. Heatin s before a subcommittee of the Committee on Interior.and Insular Affairs, Senate, on S. 2530, S. 2630, and S. 2751, 90th Cong., 2nd sess., 1968. . Lincoln Back Country Wilderness Area, Montana. Hearings before a Efibcommittee of the Committee on. Inter1or and Insular Affairs, Senate, on S. 1121, 90th Cong., 2nd sess., 1968. . Desolation and Ventana Wilderness Area,.Califor- nia. Hearings before a subcommittee of the Comb -? a o m1ttee on Inter1or and Insular Affa1rs, Senate, on S. 713 and S. 714, 91st Cong., lst sess., 1969. . Lincoln.Bgck Country Wilderness AreaLiMontana. Hearifi s before a subcommittee of the Committee on Interior and Insular Affairs, Senate, on S. 412, 9lst Cong., lst sess., 1969. . Establishing the Lincoln Back Country as Wilder- ness Area. Senate_Report No. 91-207, 91st Cong., I§t sess., 1969. . Law and the Environment--Se1ected Materials on Tax Exem t Status and PEEIic Interest Liti ation. Committee Print, 9lst Cong., 2nd sess., 1975. . A Universigy View of thejForest.Service. Senate Document No. 91-115, 91st Cong., 2nd sess., 1970. 323 U.S. Congress. Senate. Committee on Public Works. Qp;_s portunities for Economic Development in Michigan Upper Peninsula. Washington: Governmentfi Printing Office, 1961. U.S. Department of Agriculture. Forest Service. A Stud of Proposed Federal Purchase and Forest SerV1ce Management of the Lands and Waters of the Sylvania Tract located W1thin Ottawa National Forest, M1ch1gan. Milwaukee, 1964. . Contact Special: Sylvania. Milwaukee, 1967. . Forest Patterns: Beaupy and Use. Washington, 1965. . Forest Service TimberAppraisals: Situations Report. Washington, JuIy 1969. . Forests . . . for the Future. Washington, 1969. . Framework for the Future: Forest Service Ob- jectives and Policy Guides. Washington, February 1970. . Lumber and Plywood Supply: Situations Report. Washington, March 1969. . McCormick Ad Hoc Committee Meeting, December 5-6i_1969, Marquette, Michigan. Milwaukee,-l969. . Management Direction for Wilderness and Primary Recreation Zones of the Nationalr Forests in the Oregon Cascades. Portland, June I969. . Ottawa National Forest: Progress Report, Fiscal Yeartl964. Ironwood, Michigan. . Recreation Information Manag_ment--The RIM S stem. Washington: Forest Service In-service Training Guide, n. d. . Recreation Planning Handbook FSH 2309.13. Wash- ington; draft copy datedPOctober 28, 19591 . Search for Solitude: Our Wilderness Heritage. Washington, D.C.: U. 8. Government Printing Office, 1970. . Sylvania Area Soils Report. Milwaukee, 1966. 324 U.S. Department of Agriculture. Forest Service. S lvania Recreation Area Management Plan, Ottawa NationaI Forest. Milwaukee, 1968. . Sylvania Recreation Area map. Milwaukee, 1967, revised 1970. . Sylvania Recreation Area: Public Involvement. Minafikee, 1969. . The A eal Re ulation. Washington: Government Print1ng Office, I933. . Transcript of Meeting on Sylvania, SOSAC-U.S. Forest.Service, February 26, 1970. MiIWaukee, ' 1970. . What the Forest Service Does. Washington, April 1969. . Wilderness: The National Forests . . . America's Pla rounds. Washington, D.C.: U.S. Government Printing Office, 1961. U.S. Department of Agriculture. Office of the Secretary. "Office of the General Counsel: Organization, Functions, and Availability of Information." Federal Register, Vol. 35, No. 189 (September 29, p - o U.S. _Department of Agriculture. Office of the Secretary. "Secretary's Memorandum No. 1695,” four supple- ments:‘ Supplement 2, August 4, 1970: "Environ-. mental Quality Executive Committee"; Supplement 3, August 4, 1970: "Prevention, Control and Abatement of Air and Water Pollution at Federal Facilities";- Supplement 4, December 1, 1970: "Guidelines for Preparing Environmental Statements Required by Section 102 (2) (C) of P.L. 9l-l90"; Supplement 5, December 1, 1970: "Providing Timely Information to the Public About USDA Plans and Programs with Environmental Impact to Obtain the Views of In- terested Parties." Washington, D.C. (Mimeographed.) U.S. Department of the Interior. Bureau of Land Manage— ment. Where Not To Build. Technical Bulletin No. 1. Washington, 1968. U.S. .Department of the Interior. Office of the Secretary. "Office of Hearings and Appeals: Delegations of Authority." Federal Register,-Vol. 35, No. 145, p. 12081. 325 U.S. Department of Justice. "Standing to Sue." Land and Natural Resources Division Journal, Vol. 8, No. 4 (April l970),‘79-84. U.S. ,Department of Transportation. Federal Highway Admin- istration. Bureau of Public Roads. Policy and Procedure Memorandum 20-8: PublieeHeaEings and Location Approval. Washington, D.C., January 14, 1969. Books Baldwin, Malcolm F., and Page, James K. Law and the Envi- ronment. New York: Walker Press, 1976. Bennis, Warren G. Changing Organizations: Essays on the Development and Evolution of Human Or anization. New York: McGraw-HiIl Book Company, 966: , ed.. American Bureaucracy. New Brunswick, N.J.: Aldine Publishing Company, 1970. Blau, Peter M., and Scott, W. Richard. Formal Organiza- tions: A Comparative Approach. San Francisco: Chandler Puinshihg Company, I962. Burk, Dale A. The Clearcut_Crisis: Contrgversyin the Bitterroot. Great Falls, Mont.: Jursnick Prifit- ing, 1970. Buchanan, James M. and Tullock, Gordon. The Calculus of Consent. Ann Arbor: The Universityof Michigan. Press, 1962, 1965. Clawson, Marion and Knetch, Jack L. Economics of Outdoor Recreation. Baltimore: Johns Hopkins Press, 1966. Cooley, Richard A. Politics-and Conservation: The Decline of the Alaska Salmon. New York: Harper & Row, I963. Cooley, Richard A., and Wandesforde-Smith, Geoffrey." Congress and the Environment. Seattle: Univer- sity of Washington Press, 1970. Cox, Edward F., Fellmeth, Robert C., and Schulz, John E. Nader's Raiders: Report on the Federal Trade Commission. New York: Grove Press, 1969. 326 DeBell, Garrett, ed. The Environmental Handbook. New York: Ballantine Books, Inc., 1970. Dunbar, Willis F. Michigan: A History of the Wolverine State. Grand Rapids: Eerdmans Publishing Company, Environment Re orter. Washington: The Bureau of National Affairs, I970. Esposito, John C. VanishinglAir: The Ralph Nader Stud Grou Report on Air Pollution. New York: Gross- man Publishers, 1970. Etzioni, Matai. Modern Organizations. Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1964. . Complex Orgenizations: A Sociological Reader. New York: Holt, Rinehart and Winston, Inc., 1962. . The Active Societyer Theorygof Societal and Political Procesees.. London: Collier-Macmillan; New Yofk: Free Press, 1968. Fellmeth, Robert C. Thetipterstateggmmerce Omission. The Ralph Nader Study Group Report on the Inter- state Commerce Commission and Transportation. New York: Grossman Publishers, 1970. Freeman, Orville L., and Frome, Michael. The National Forests of America. New York: G. P. Putnam's Sons, 1968. Friedman, Lawrence M., and Macauley, Stewart. Law and the Behavioral Sciences.4 Indianapolis: The Bobbs- Merrill Company, 1969. Frome, Michael. Whose Woods These Are: The Stgry of the National Forests. Garden City, N.Y.: Doubleday & Company, Inc., I962. Gottschalk, Louis; Kluckhohn, Clyde; and Angell, Robert. The Use of Personal Documents in Histor , Anthro- lo , and Sociolo . New York: Social Science po gy 3% Researc Counc1 , 5. Holbrook, Stewart H. Holy Old Mackinaw: A Natural History of the American Lumber'ack. New York: The Macmillan Company, 193 . 327 Holbrook, Stewart H. Iron Brew: A Century of American Ore and Steel. New York: *The Macmillan Company, 1939. Gilbert, Douglas L. Public Relatiops in Natural Resources Management. Minneapolis: Burgess Publishing Company{_l964. Grad, Frank P. Environmental Law Sources and Problems. New York: Matfhew Bender,iI970. Gray, Oscar S. Cases andrMaterials on Environmental Law. Washington: The Bureau of National Affairs, Inc., 1970. Helfrich, Harold W., Jr., ed. The Environmental Crisis. New Haven: Yale University Press, 1979. Kaplan, Abraham. The Conduct of Inqpiry. San Francisco: Chandler Publishing Company, I964. Kaufman, Herbert. The Foreet Ranger: A Study in_Adminis- trative Behavior. Baltimore: The Johns Hopkins Press, 1960. Jones, Harry W., ed. The Courts, the Public, and the Law Explosion. Englewood Cl1ffs, N.J.: Prentice-Hal , Inc., 1965. Kelley, Stanley, Jr. Professional Public Relations and Political Power. Baltimore: iThe Johns Hopkins Press, 19661 Lipset, Seymour Martin, ed. Politics and the Soeial Sciences. New York: OxfOrd University Press, 9. Mitchell, John G., and Stallings, C. L., eds. Ecotactics: The Sierra Club Handbook for Environmental Acfi- vists. New York: Pocket Books, 1970. Mosher, Frederick C. Democracy and the Public Service. New York: Oxford University Press, 1968: Reich, Charles A. The Greening of America. New York: Random House, I979. Sax, Joseph L. Defendingthe Environment: A Strate for Citizen Action. New York: Alfred A. Knopf, i97I. 328 Schulz, William F., Jr. Conservation Law and Administra- tion. New York: The Ronald Press Co., 1953. Smith, Frank E. The Politics of Conservation. New York: Random House, 1966. Tullock, Gordon. The Or anization of Inquiry. Durham: Duke Univers1ty Press, 1966. Woll, Peter. American Bureaucracy. New York: W. W. Norton and Company, Inc., 1963. Articles, Booklets, and Reports "A New Right to Sue Polluters." Time, August 24, 1970, p. 37. Abramson, Rudy. "Nader's Branching Out." The State Journal, Lansing, Michigan, September 27, 1970, p. C-:. Bentley, William R. "Forest Service Timber Sales: A Preliminary Evaluation of Policy Alternatives." Land Economics, Vol. 19, No. 2, May 1968, pp. 205-218. Brandborg, Stewart M. A Handbook on the Wilderness Act. Washington, D.C.: The Wilderness Society, I975. Catton, William R., Jr. "Motivations of Wilderness Users.“ Trends--Park Practice, Vol. 7, No. 4, October I970, pp. 9-170 Cohen, Bernie S. "The Constitution, Public Trust Doctrine, and the Environment." Utah Law Review, June 1970. "Conservation Law I: Seeking a Breakthrough in the Courts." Science, Vol. 166, December 19, 1969, pp. 1487-9 . "Conservation Law II: Scientists Play a Key Role in Court Suits." Science, Vol. 166, December 26, 1969, pp. 1601-06. Esposito, John. "What to do while Waiting for Washington." Harvardgivil Ri hts and Civil Liberties Law Review, January i970. 329 Fisher, R. Frederic. "Environmental Law." Sierra Club Bulletin, January 1971, pp. 24-29. Grad, Frank P., and Rockett, Laurie R. "Environmental Litigation--Where the Action Is?" Natural Re- sources Journal, Vol. 10, No. 4, OctOber I979? pp. 742-762. Haik, Raymond A. "The Law: Enforcing Quality." N2 erosit--No Return. Edited by Huey D. Johnson. Reading, Mass.: Addison—Wesley Publishing Com- pany, 1970. Hamill, Louis. "The Process of Making Good Decisions About the use of the Environment of Man." Natural Resources Journal, April 1968. Hanks, Eva H. "Environmental Bill of Rights." Rutgers Law Review, June 1970. , and Hanks, John L. "The Right to a Habitable Environment." The Ri hts of Americans: What They Are--What They ShouI§Be. Edited by Norman Dorsen. New York: Pantheon Books [Random House],.1970. Hardin, Garrett. "The Tragedy of the Commons." Science, Vol. 162, December 13, 1968, pp. 1243-48. Jackson, Henry M. "Public Policy and Environmental Admin- istration." Bioscience, December 1967, pp. 883- 885. Jemison, George M. "Impacts of Recreation on the Ecology of Temperate North American Forests." Proceedingg and Papers of the International Union for the Conservation of Nature, June 1966. Lucerne: IUCN, 1967, pp. 173-185. Johnson, Mrs. Lyndon B. "Sylvania Recreation Area." The Living Wilderness, Vol. 32, No. 101, Spring 1968. Jorling, Thomas C. "Information, the Tax Law, and the Legislative Process." Oregon Law Review, Vol. 48 (April 1969), 227-236. Journal of Forestry. Special issue on decision making in forest resource management. October 1968. Keane, John T. "Conservation Comes to Court." Journal of Forestry, April 1971, pp. 206-209. 330 Kendall, Don. "Forest Service Plans New, Strict Guidelines for Cutting Timber." The State Journal, Lansing, Michigan, January 1, 1971. (Associated Press story datelined Washington.) Kohlmeier, Louis M. "High Court Gives Individuals and Concerns Standing to Sue Federal Administrators." The Wall Street Journal, March 4, 1970, p. 6. "Law Student Training in Environmental Action." Action: April 22. Washington, D.C.: Environmental Teac - In, Inc., April 9, 1970, p. 3. Lohrmann, Robert R. "The Environmental Lawsuit: Tradi- tional Doctrines and Evolving Theories to Control Pollution." Wayne Law Review, XVI (Summer 1970), 1085-1135. McCloskey, Michael.. "The Wilderness Act of 1964: Its Background and Meanings." Oregon Law Review, Vol. 45 (June 1966), 288-321. McCloskey, Michael. "A Bill of Environmental Rights." N9 Deposit—-No Return. Edited by Huey D. Johnson. Reading, Mass.: AddiSon-Wesley Publishing Company, 1970. Mock, H. Byron. "Forest Management and Litigation." Journal of Forestgy, April 1971, pp. 200-205. "New Federal Law May be Giant Step on Road to Environmental Quality." Conservation Foundation Newsletter, April 4, 1970. Perin, Constance. "The Noiseless Secession from the Com- prehensive Plan." Journal of the American Insti- tute of Planners, Septemberil967. Price, Don K. "Purists and Politicians." Science, Vol. 163, January 3, 1969, pp. 25-31. Reich, Charles A. "The Public and the Nation's Forests." California Law Review, Vol. 50, No. 3, August I962: pp. 3814407T Reich, Charles A. Bureaucracy and the Fegests. Santa Barbara, Calif.: Center for the Study of Demo- cratic Institutions, 1962. 331 Richards, Frederick S. "Walton v. St. Clair: The Standing Question." Natural Resources Lawyer, Vol. IV, No. 1, January I97I. "Rigid Institutions Blamed for Upheaval." The State Journal, Lansing, Michigan, September 18, I970, Po Aéao Rogers, James P. "The Need for Meaningful Control in the Management of Federally Owned Timberlands." Land and Water Law Review, Vol. IV, No. 1, 1969, 12l- 143.. Sax, Joseph L. "Emerging Legal Strategies: Judicial Intervention." The Annals of the American Academy of Political and SociaIIChange, Vol. 389, pp. 71- 76} Sive, David. "Some Thoughts of an Environmental Lawyer in the Wilderness of Administrative Law." Columbia Law Review, Vol. 70, No. 4 (April 1970), BIZ-651. "Standing to Sue--and Public Timber Resources.” Natural Resources Lawyer, V01. 3 (July 1970), 444-460. Sylvania. Ann Arbor: University of Michigan School of Natural Resources, 1965. The Case for a Blue Ribbgn Commission on Timber Management in the National Forests. Jointly published by thé Rocky Mountains Chapter of the Sierra Club and the Western Regional Office of the Wilderness Society, 1970. Twiss, Robert H. "Recreationists as Decision Makers." Proceedings of the 57th western Forestry_Confer-. ence, December 7-9, 1966, published by the Western Forestry and Conservation Association, Portland, Oregon, pp. 42-45. Twiss, Robert H. "Conflicts in Forest Landscape Manage- ment: The Need for Forest Environmental Design." Journal of Forestgy, Vol. 69, No. 1 (January. 19697, 19-23. Vose, Clement E. "Litigation as a Form of Pressure Group Activity." American Government: Readin s and Cases._ Edited by Peter Woll. Boston: Little, Brown and Company, 1962. 332 Whiteside, E. P., et a1. Soils of Michigan. Special Bulletin 402, Michigan State University Agricul— ture Experiment Station, 1963. Willner, Don S. "Who Has Standing in Oregon to Defend the Environment?", Environmental Law, Vol. 1, No. 1 (Spring 1970). PP. 44—59. Yannacone, Victor J. "Sue the Bastards." Earth Da --The Be innin . Edited by the National Staff of EnV1- ronmenta? Action. New York: Bantam Books, Inc., 1970. Unpublished Material Chappelle, Daniel B. Social Science and Computer Skills Needed 9y Resource Researchers. East Lansing, Michigan: Michigan State University, 1970, mimeo. Clady, Michael. Regulatiop of Fish Populations in Three Li htl Ex loited Lakes in Northern Michigan,f5r degree of Doctor of Philosophy in the University of Michigan, 1970. Environmental Law - 1970. Course Materials, November 13- 14, 1970. The Institute of Continuing Legal Edu- cation, Ann Arbor, Michigan. Foster, Charles H. W. "The Case for Environmental Con- ciliation." Speech to American Institute of Bio- logical Sciences, Burlington, Vermont, August 19, 1969. Freeman, Orville L., Secretary of Agriculture. "Decision on the Request by the Colorado Department of Highways to route Interstate 70 through the Gore Range—Eagle Nest Primitive Area . . ." May 17, 1968. Gandt v. Hardin: Transcript of Proceedin s. Western District Michigan 1964, Civil Doc et No. 1334, December 9-10, 1969. Hansen, Roger P. "Creating New Institutional Arrangements for Environmental Quality Control." Speech to American Bar Association, St. Louis, Missouri, August 11, 1970. 333 Humphrys, Clifford R. The Evaluation of Physical Factors in Relation to Land Use: A Study of Gogebic and Ontonagon Counties, Michigan. Dissertation far degree of Doctor of Philosophy, Michigan State College of Agriculture, 1952. Humke, John W. A Co_parative Study of Four State Natural Areafgystems with Recommendations for Michigan. East Lansing, Michigan: Michigan; State University, 1970, unpublished M. S. thesis. Kizer, Ralph D. Sylvania the Way It Is. Speech mimeo- graphed at Ottawa National Forest headquarters, Ironwood, Michigan, September 8, 1969. Leighty, Leighton L. "The Legal Aspects of Natural Re- sources." Speech to Society-for Industrial Micro- biology Summer Institute, East Lansing, Michigan, July 1, 1970. Leighty, Leighton L. "Environmental Law Programs in Michigan." Speech to Flint Rotary Club, August 28, 1970. Schmid, A. Allan. "The Quality of the Environment and Man: Some Thoughts and Opinions on Economic In- stitutions." Speech to Michigan Chapter, Soil Conservation Society of America, January 15, 1966. HICHIGQN STRTE UNIV. LIBRQRIES 31293006289601