Petition — Wilson v. Block

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Office-Supreme Court, U.S.

83-289 | FILED

AUE 22 1983

No. ALEXANDER L. STEVAS,

CLERK

OCTOBER TERM, 1983

IN THE SUPREME COURT OF THE UNITED STATES

RICHARD F. WILSON and JEAN WILSON,

Petitioners,

VS.

JOHN R. BLOCK, Secretary of Agriculture;

R. MAX PETERSON, Chief Forester of the

United States and Acting Assistant Secretary of

Agriculture for National Resources and Environ-

ment, Department of Agriculture; and NORTH-

LAND RECREATIONS, INC., an Arizona Cor-

poration,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Douglas J. Wall, Daniel J. Stoops, Robert W. Warden

MANGUM, WALL, STOOPS & WARDEN

222 East Birch Avenue / P.O. Box 10

Flagstaff, Arizona 86002

Telephone: 602-774-6664

Attorneys for Petitioners

No.

OCTOBER TERM, 1983

IN THE SUPREME COURT OF THE UNITED STATES

RICHARD F. WILSON and JEAN WILSON,

Petitioners,

VS.

JOHN R. BLOCK, Secretary of Agriculture;

R. MAX PETERSON, Chief Forester of the

United States and Acting Assistant Secretary of

Agriculture for National Resources and Environ-

ment, Department of Agriculture; and NORTH-

LAND RECREATIONS, INC., an Arizona Cor-

poration,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Dougias J. Wall, Daniel J. Stoops, Robert W. Warden

MANGUM, WALL, STOOPS & WARDEN

222 East Birch Avenue / P.O. Box 10

Flagstaff, Arizona 86002

Telephone: 602-774-6664

Attorneys jor Petiticners

QUESTIONS PRESENTED*

1. May the Secretary of Agriculture circumvent Congress’

80-acre limitation on permits for recreational use of national

forest land (16 U.S.C. § 497) by issuing to private, recreational

developers both a long-term permit for 80-acres or less and,

under the 1897 Organic Act (16 U.S.C. §551), a supplementary

permit exceeding 80-acres for recreational facilities which are

essential to the use authorized by the 80-acre permit, coexten-

sive in duration with such a use and in fact irrevocable as long

as the use under the 80-acre permit continues to exist?

2. Does a mountain located within national forest land

which the State Historic Preservation Officer finds as a fact

under the applicable legal criteria to be of significant impor-

tance to both Indian and non-Indian patterns of American

history and culture qualify as a “site” or “district” which is

eligible for protection and listing under the National Historic

Preservation Act, 16 U.S.C. § 470, et seq., and its implementing

regulations, 36 C.F.R. §800.4(a) (3)?

* All parties to the instant case are listed in the caption of the Petition.

Pursuant to Supreme Court Rule 21.1(b) we list here all parties to the pro-

ceeding below in the other cases which the instant matter was consolidated.

In Hopi Indian Tribe v. Block, Nos, 81-1912 and 82-1706 the Plaintiff

/Appellant was the Hopi Indian Tribe. The Defendants/Appellees were

John R. Block, Secretary of Agriculture; Ned D. Boyley, Acting Assistant

Secretary of Agriculture for Natural Resources and Environment; R. Max

Peterson, Chief Forester of the United States. Northland Recreations, Inc.

was an Intervenor/Appellee.

In Navajo Medicinemen's Association v. Block, Nos. 81-1956 and 82-

1705 the Plaintiffs/Appellants were the Navajo Medicinemen’s Associa-

tion, Faye B. Tso; Ashee Begay, Sr.; Tom Watson, Sr.,; Miller Nez; Frank

Bluehorse; Fred Stevens, Jr.; Francis D. Tsosie; Jim Charley; Hoskie Tom

Becenti; Tony Trujillo; Jacob Poleviyaoma, Sr.; Jacob Poleviyaoma, Jr.;

Jerry R. Sekayumptewa; and Lavern Siwumptewa. The Defendants/

Appellees were John R. Block, Secretary of Agriculture; R. Max Peterson,

Chief Forester of the United States; the United States Forest Service,

Department of Agriculture; and the United States of America. Northland

Recreations, Inc. was an Intervenor/Appelle.

TABLE OF CONTENTS

ee” errr rr rr ree ee ee ]

Parties to the Proceedings Below ..........0cceeeeevees |

po a ry ry eee eRe eee ee cree i

De Oe ED bo env gcd baker be serescbeebechen ii-vi

Opinions in the Courts and Agencies Below .............. 2

bn Se imran a te ho eae yee Oe ape 2

Constitutional and Statutory Provisions..... following page 2

Statement of the Case and the Material Facts............. 3

Reasons and Argument for Granting the Petition......... 10

I. The Court of Appeals’ Decision Nullifies the Statute,

16 U.S.C. §497, Limiting the Size of Private Recrea-

tional Developments in the National Forests Through a

Construction of the 1897 Organic Act, 16 U.S.C. §551,

Which Conflicts with the Decisions of The Supreme

Court and the Property Clause of the United States

CORI os onc oa care neh hwesvedes baa 10

A. The Court of Appeals’ Holding Conflicts With This

Court’s Decisions Construing The Organic Act of

Sams ©. 1s | he aw cashes cbbee bs hance bbace ll

B. The Court of Appeals’ Use of Unsuccessful Legisla-

tive Material Conflicts with the Decisions of This

Cant cil STO dds 6.0 ve scar see eben 16

C. The Court of Appeals’ Decision on the Revocability

Issue Is At Odds With the Profferty Clause and Con-

flicts With a Ninth Circuit Decision and Attorney

Go SO ns ak iac eso ese ee seeess 24

Il. The Court of Appeals’ Holding That The San Francisco

Peaks As An Entity Are Ineligible for Protection and

Listing Under the National Historic Preservation Act

Conflicts with Decisions of Other Circuit Courts of

Appeals and is Contrary To the Terms of the Act, Its

Implementing Regulations and Interior Department

RE ree ye ree er eee Pere ere 28

a Ree BS PS EIRP TA 0G) eS Beet Oe Re OSES 92 30

TABLE of CASES, STATUTES and OTHER AUTHORITIES

Cases:

Aluli v. Brown, 437 F.Supp. 602 (D. Hawaii, 1977),

rev'd on other grounds, 602 F.2d 876 (9th Cir., 1979)

eee © SE, See a SIP RURETD eos cde ac ences cts

Boston & M.R.R. v. United States, 265 Fed. 578

SE eR PEE 5 a's ok PRED cease cso eepe neces

Chess v. Widmar, 63° =.2d 1310 (8th Cir., 1980),

aff'd sub. nom. W. «mar v. Vincent, 445 U.S.

Lt DARA ag oid eg A Ge

Cipriano v. Houma, 395 U.S. 701 (1969) ........0.....

City of Kingsville vy. Meredith, 103 F.2d 279

an EN eaten Sie cere pies vo ales oldies

Consumer Products Safety Commission v. G.T.E.

Sylvania, Inc., 447 U.S. 102 (1980) ...............

Cy Ellis Raw Bar v. District of Columbia Redevelopment

Land Agency, 443 F.2d 543 (D.C. Cir., 1970) .......

Federal Maritime Commission v. Seatrain Lines,

Ge Pee FREESE cid so dei’ bed hale sb ok exe

Gay v. Parpart, 106 U.S. (16 Otto) 679 (1883) .........

Gemsco v. Walling, 324 U.S. 244 (1945) ..............

Hartford Electric Light Company v. F.P.C.,

131 F.2d 953 (2nd Cir., 1942), aff'd, 319 US.

ce ea ital Ear ur <2 oe) ee oa a ga

Jones v. Liberty Glass Company, 332 U.S. 524 (1947) ..

March vy. United States, 506 F.2d. 1306 (D.C. Cir., 1974)

Page

: a

—

N.L.R.B. v. Plasterer’s Local Union No. 79, 404

Mohs BARES bc ined bawae Roe aeed rors eee 16

New Mexico Navajo Randers Association v. Interstate

Commerce Commission, 702 F.2d 227

Se Gr EOD ce a Oh tot oe ee ee 29

Northern Pipeline Construction Company v. Marathon

Line Company, U.S. , 102 S.Ct.

PE Ak hind as fp ORE re eee 27

Osborne v. United States, 145 F.2d 892

Crd: BOO rn SA ede he Cah aaheho eT 26

Shannon v. United States, 160 Fed. 870

CR i ER a oan wn ek aan ee kn a ee 26

Sierra Club v. Morton, 405 U.S. 727 (1972) aff’ on

standing grounds only Sierra Club v. Hickel,

Gsa 5.20 oe Ci Ge. WOTET So oie can eanecees 10, 27

Stop H-3 Association v. Coleman, 533 F.2d 434

(9th Cir., 1976), cert. denied sub. nom.,

Wright v. Stop H-3 Association, 429 U.S. 999

CRUPOR ran so cs Ke nwh eat bone Cae ae eee 28-29

T.ILM.E. v. United States, 359 U.S. 464 (1959) .......... 16

United States v. Clark, 445 U.S. 23 (1980) ............. 21

United States vy. Graham, 110 U.S. 219 (1884) .......... 27

United States v. Grimrud,

ee UO CREED cian cntnaecean teen 13, 21-22, 26

United States v. New Mexico,

ee 8a. | ne ae ee 12-14, 21-26

United States v. Southwestern Cable Company,

Pee Cn TEP CIOED ones 4k oo akeea ee 21

Page

United States v. Wise, 370 U.S. 405 (1962) .......... 16, 2]

Volkswagon of America, Inc, v. United States,

340 F.Supp. 983 (Cust. Ct., 1972), aff'd

484 F.2d 703 (Cust. & Pat. App., 1973) ........055, 20

arr vy. Ales: 4561 UE. 259 CISS)) occ sciccccctecees 24

West Virginia Division of Izaak Walton League

vy, Butz, $22 F.2d 945 (4th Cir., 1978)... . ces 24

STATUTES, RULES AND CONSTITUTIONS.

EE oe os e's Ciencia boone #61 0%) ee he 27

No ont sc a ce bce wee reek dare anes t 1,30

16 U.S.C, §470-1..... iaaweaeans rein tleea tad Baits 30

Cs ow ee ee er 6, 28

Ck a” PE ee aE ee 6, 30

16 U.S.C, §495 . SPN PO PEE pee hr 13

16 U.S.C. §497 ... eer 1, 3-6, 9-11, 13-27

A a gown Gh ple OR Meh ae Dw Bade we 18

OG OE Leb ons tare bee ae bore ke 23-24

UE Sekt > 5 eae fs dkca wre 1, 3-6, 9-12, 15-25

ERS, he's als ko -a0.0 whe eevee bs ROGET a 2

I eo lare- Sn VieG 0d lean oe'# Mid w'o-e ep pai eR 6

EE Sa laa 7 \a a's 4-5 ab pow bak ae kee ele Ree 6

ER Lins cap ca ok 06.6 hee Calabar eke ae 15

I go nina od sin ke aee bee vietk Cad 13,19

EE acing awk 'e d aap. 0.68 bee Cn. 13-14, 19

ID ha isc 5's Gace 00s bp cuss Oia y waxes 19-27

hs aoa cd yio.e da new ee oan he REG 27

Tr Se 2A). iy 6s »0'.0.0'8'0.0 0:00:00 08 049 ee |

Page

ee TS ho Ver VeCe Rea k a occ aye aae Rene 6

IIE og 54h a 0 ae ara bsd nib ie fvieerere hie he CAE ak 28

a MIE dae irs te PL KR Gas Kee Oe MCRD K Coie sien 1,6

ee EDD i dna eet ba Wek ple renee 1, 28-29

U.S, Constitution, Article 4, Section 3, Clause2 ...... 10, 26

LEGISLATIVE HISTORY:

er Se. EES 5 bans a he es Vien eee Reta ore 13

Pe A, TERM RUE De Nia oc-c Ou Secu aves crest ven 13

ee ES) hy hw wh eth bene We V4 eck oe 13

a I POE CU EMS y oiy n'y p00. 0.00 obo wee Oe ee eee 14

Da CUNO: ATT EOE as cba} wha kh canes ce Oe wows 14-15

en ee, GEE M Ds ss oink see beled web Reeededs 14

H.R. Rep, No, 942, 52nd. Cong., 2nd Sess, (1898) ......., 13

H.R, Rep, No, 805, 80th Cong,., Ist Sess, (1947) ....... 17-19

H.R. Rep, No, 2792, 84th Cong., 2nd Sess, (1956) ..... 21-23

S. Rep, No, 2511, 84th Cong., 2nd Sess. (1956) ....... 21-13

S. Rep, No, 899, 80th Cong., 2nd Sess. (1948) ........,5, 19

Hearings on S. 773 Before a Subcommittee

of the House Committee on Agriculture, 72nd,

CL Ge a se OOO cs Cin vecis cane nenen 17

Hearings Before Subcommittee No, 2 of the House

Committee on Agriculture on H.R, 1809, 80th

Ce: CG BOURGAS THs ATs cK rete nedwetenes 18

Report Upon the Forestry Investigations of the

United States Department of Agriculture,

H. Doc, No, 181, 55th Cong,, 3rd Sess, (1899) ......, 15

Page

UNSUCCESSFUL LEGISLATION:

S. 773, 72nd Cong., Ist Sess. (1931) 0.0.0... ccc c cee, 17

ATTORNEY GENERAL'S OPINIONS:

34 Op. Atty. Gem. 320 (1924) vo ovine icc c nc ceccecnn. 26

3S Op. Atty, Gem. 485 (1928) oo... ccc cece ccccccce,. 26

OTHER AUTHORITIES:

72 Am. Jur. 2d. “Statutes” §324..................... 20

Indian Law Reporter, Vol. 14, pp. 3073-3079 ........... 2

United States Department of the Interior,

National Park Service, The National Register

of Historic Places (Washington: U.S. Government

Printing Office, FIG UE) ass Vices urna cee eee

Petitioners, Richard F. Wilson and Jean Wilson, respectfully

pray that a Writ of Certiorari issue to review the Judgment and

Opinion of the United States Court of Appeals for the District

of Columbia Circuit entered on May 20, 1983.

OPINIONS IN THE COURTS AND AGENCIES BELOW

The opinion of the Court of Appeals (App. “A”, pp. 1-50)

is reported at 708 F.2d. 735-760. The June 15, 1981 (App.

“B", pp. 51-90) and May 14, 1982 (App. “C’’, pp. 91-99)

memorandum opinions of the District Court have not been

officially reported, although portions of the June 15, 1981

memorandum opinion have been reprinted in the /ndian Law

Reporter, Vol. 14, pp. 3073-3079.

The initial decisions of the Forst Supervisor (App. “D”,

pp. 100-109), the Regional Forester (App. “E”’, pp. 110-128),

and the Chief of the Forest Service (App. “F’’, pp. 129-141) are

neither officially nor unofficially reported. The same is true of

the opinions of the Forest Supervisor (App. “G’’, pp. 142-157),

the Arizona State Historic Preservation Officer (App. “H’’, pp.

158-164), and the Chief of the Forest Service (App. “I’’, pp.

165-166) issued in connection with remand proceedings ordered

by the District Court for compliance with the National Historic

Preservation Act.

JURISDICTION

The judgment of the Court of Appeals was entered on May

20, 1983 (App. “J”, p. 167). Petitioners did not file a Petition

for Rehearing and Suggestion for Rehearing En Banc, although

such petitions were filed by the Hopi Indian Tribe and the

Navajo Medicinemen’s Association in actions consolidated with

Petitioners’, the same having been denied on July 14, 1983 and

July 26, 1983, respectively (App. “J”, pp. 168-171).

The jurisdiction of this Court is invoked under Title 28

U.S.C, §1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

Article 4, Section 3 Clause 2, of the United States Constitu-

tion:

The Congress shall have Power to dispose of and make

all needful Rules and Regulations respecting the Territory

or other Property belonging to the United States; and noth-

ing in this Constitution shall be so construed as to Prejudice

any Claims of the United States, or of any particular State.

16 U.S.C. § 497:

The Secretary of Agriculture is authorized, under such

regulations as he may make and upon such terms and condi-

tions as he may deem proper, (a) to permit the use and oc-

cupancy of suitable areas of land within the national forests,

not exceeding eighty acres and for periods not exceeding

thirty years, for the purpose of constructing or maintaining

hotels, resorts, and any other structures or facilities neces-

sary or desirable for recreation, public convenience, or

safety; (b) to permit the use and occupancy of suitable

areas of land within the national forests, not exceeding five

acres and for periods not exceeding thirty years, for the pur-

pose of constructing or maintaining summer homes and

stores; (c) to permit the use and occupancy of suitable

areas of land within the national forest, not exceeding

eighty acres and for periods not exceeding thirty years, for

the purpose of constructing or maintaining buildings, struc-

tures, and facilities for industrial or commercial purposes

whenever such use is related to or consistent with other

uses on the national forests; (d) to permit any State or

political subdivision thereof, or any public or nonprofit

agency, to use and occupy suitable areas of land within the

national forests not exceeding eighty acres and for periods

not exceeding thirty years, for the purpose of constructing

or maintaining any buildings, structures, or facilities neces-

sary or desirable for education or for any public use or in

connection with any public activity. The authority pro-

vided by this section shall be exercised in such manner as

not to preclude the general public from full enjoyment of

the natural, scenic, recreational, and other aspects of the

national forests.

16 U.S.C. §551:

The Secretary of Agriculture shall make provisions for

the protection against destruction by tire and depredations

upon the public forests and national forests which may have

been set aside or which may be hereafter set aside under the

provisions of section 471 of this title, and which may be

continued; and he may make such rules and regulations and

establish such service as will insure the objects of such reser-

vations, namely, to regulate their occupancy and use and to

preserve the forests thereon from destruction; and any viola-

tion of the provisions of sections 473 to 478 and 479 to

482 of this title or such rules and regulations shall be pun-

ished by a fine of not more than $500 or imprisonment for

not more than six months, or both. Any person charged

with the violation of such rules and regulations may be tried

and sentenced by any United States magistrate specially de-

signated for that purpose by the court by which he was

appointed, in the same manner and subject to the same

conditions as provided for in section 3401(b) to (e) of

Title 18.

16 U.S.C. §470a(a) (1) (A)

(a) (1) (A) The Secretary of the Interior is authorized

to expand and maintain a National Register of Historic

Places composed of districts, sites, buildings, structures, and

objects significant in American history, architecture, arche-

ology, engineering, and culture.

16 U.S.C. §470f

The head of any Federal agency having direct or indirect

jurisdiction over a proposed Federal or federally assisted

undertaking in any State and the head of any Federal de-

partment or independent agency having authority to license

any undertaking shall, prior to the approval of the expendi-

ture of any Federal funds on the undertaking or prior to

the issuance of any license, as the case may be, take into

account the effect of the undertaking on any district, site,

building, structure, or object that is included in or eligible

for inclusion in the National Register. The head of any

such Federal agency shall afford the Advisory Council on

Historic Preservation established under sections 470i to

470t of this title a reasonable opportunity to comment with .

regard to such undertaking.

16 U.S.C. §470h-2 (a) (1) (2):

(a) (1) The heads of all Federal agenices shall assume

responsibility for the preservation of historic properties

which are owned or controlled by such agency. Prior to

_acquiring, constructing, or leasing buildings for purposes

of carrying out agency responsibilities, each Federal agency

shall use, to the maximum extent feasible, historic proper-

ties available to the agency. Each agency shall undertake,

consistent with the preservation of such properties and the

mission of the agency and the professional standards estab-

lished pursuant to section 470a(f) of this title, any preser-

vation, as may be necessary to carry out this section.

(2) With the advice of the Secretary and in cooperation

with the State historic preservation officer for the State

involved, each Federal agency shall establish a program to

locate, inventory, and nominate to the Secretary all proper-

ties under the agency’s ownership or control by the agency,

that appear to qualify for inclusion on the National Register

in accordance with the regulations promulgated under sec-

tion 470a (a) (2) (A) of this title. Each Federal agency shall

exercise caution to assure that any such property that might

qualify for inclusion is not inadvertently transferred, sold,

demolished, substantially altered, or allow to deteriorate

significantly.

STATEMENT OF THE CASE

AND THE MATERIAL FACTS

The San Francisco Peaks, a volcanic mountain mass located

north of Flagstaff, Arizona, are within the Coconino National

Forest and, except for certain privately owned parcels of land,

are managed by the United States Forest Service, Department

of Agriculture. The Arizona Snow Bowl, recently renamed

the Fairfield Snow Bowl, is a 777-acre skiing facility located on

the western slopes of the San Francisco Peaks on lands which

are wholly within the Coconino National Forest. (App. “A”

pp. 4-6.)

On April 15, 1977 the Forest Service issued two permits

to Northland Recreations, Inc. to operate the Snow Bowl. One

of these permits was a “Term Permit” given under the authority

of the Act of March 4, 1915, 16 U.S.C. § 497, while the other

was styled as a “Special Use Permit” and was issued under the

purported authority of the Act of June 4, 1897, 16 U.S.C. §

551. (App. “A”, pp. 41-42.)

The “Term Permit” for the Snow Bowl, as modified on May

18, 1982, covers 24 acres of land for the purposes of construc-

ting, maintaining and operating a winter sports area consisting

of uphill lifts, tows, a lodge and parking areas togetle with

related utilities. This permit remains in full force and effect for

a period ending May 1, 1997, is “not transferable,” and can

only be terminated upon breach of a condition of the permit.

(App. “A”, pp. 41-42; Record, J.A., III, 997-1024).

The “Special Use Permit,” as modified on May 18, 1982,

covers 753 acres of national forest land excluded from the

“Term Use Pe: mit” for the purposes of “[c] leaning, grooming,

signing and maintaining ski slopes and trails in connection with

the Term Use Permit for the Winter Sports Site designated

Northland Recreations, Inc., dated 4-15-77.” The “Special

Use Permit” provides that it is ‘not transferrable” and “may

be terminated upon breach of any of the conditions herein or

at the discretion of the regional forester or the Chief, Forest

Service.” Under its ‘‘Miscellaneous” provisions the Special Use

Permit specifies that all revenue or sales derived from or attri-

butable to use of the land covered by it, together with all fees,

“are to be paid and determined as set forth in the Term Special

Use Permit dated 4-15-77” and that the Special Use Permit “is

subject to Clauses B-1 through G-12, including insurance re-

quirement(s], in the Northland Recreations, Inc. Term Special

Use Permit dated 4-15-77.” The Special Use Permit’s ‘“Miscel-

laneous” provisions further state that ‘“(u]nless sooner termi-

nated or revoked by the Regional Forester, in accordance with

the provisions of the permit, this permit shall expire and be-

come void on 5-1-97, but a new permit to occupy and use the

same National Forest lands may be granted provided the per-

mittee will comply with the then existing laws and regulations

governing the occupancy and use of National Forest lands and

shall have notified the Forest Supervisor not less than six (6)

months prior to said date that such new permit is desired.”

‘Record, J.A., III, 993-996.)

In July, 1977, Northland Recreations submitted to the

Forest Service a “master plan” for future development of the

Snow Bow! which contemplated the construction of additional

parking areas, ski slopes, a new lodge, and additional ski lifts.

After public consultation and the consideration of six alterna-

tives, ranging from complete removal of the Snow Bowl facility

to full development as proposed by Northland, the Coconino

National Forest Supervisor decided on February 27, 1979 to

permit substantial expansion of skiing and recreational facilities

at the Snow Bowl. (App. “D”, pp 101-108.)

In its essential features, the “Preferred Alternative” ap-

proved the clearing and construction of 50 acres of new ski

runs, raising the total acreage from 156 acres to 206 acres for

ski runs. It authorized the construction of a new ski lodge adja-

cent to the existing one, increased the acreage for the parking

area to 8.1 acres, permitted the widening and paving of the

Snow Bowl access road, and allowed the construction of three

new ski lifts in addition to the existing one. Implementation of

the “Preferred Alternative” would increase the lift capacity of

the Snow Bowl five-fold (from 522 skiers to over 2,800 skiers

daily), would almost double the size of the parking lots, would

increase the seating capacity in the lodge from 120 people to

nearly a thousand, and would increase the acreage devoted to

ski runs by approximately forty percent (40%). (App. “D”,

pp. 106-108.)

Petitioners Richard F. Wilson and Jean Wilson opposed any

expansion and development of the Snow Bowl and Snow Bowl

Road. The Wilsons are the fee owners of substantial tracts of

land located on the western slopes of the San Francisco Peaks

adjacent to the Arizona Snow Bowl permit area, including the

Fern Mountain Ranch, a National Register Historic Site. Having

preserved their own private land-holdings on the Peaks in a

natural state, the Wilsons opposed expansion and development

of the Snow Bowl and Snow Bow! Road because it would detri-

mentally affect the use to which they have dedicated their own

property and would irreparably and adversely affect the envir-

onmental, aesthetic, historical and religious significance of the

San Francisco Peaks as a whole and their own property located

on it, thereby eroding the primary value which the Wilsons

attach to their own lands and to the Peaks as a whole. (App.

“A” pp. 51, 80-81; Record, J.A.,1, pp. 88-89, IV, pp. 1351-1357.)

Accordingly, after exhausting their administrative remedies,

the Wilsons filed their Complaint on March 9, 1981 in the

United States District Court for the District of Columbia chal-

lenging under a variety of federal environmental laws Respon-

dents’ decision to expand and develop the Snow Bowl and

Snow Bowl Road. Among other claims, the Wilsons alleged

that expansion, development and operation of the Snow Bowl

under the dual permit system there employed violated the 80-

acre, recreational use limitation imposed by 16 U.S.C. §497,

and that Respondents’ failure to consult with and to refer to

the Interior Secretary the question of the eligibility of the

San Francisco Peaks as an entity for listing on the National

vation Act, 16 U.S.C. §470a and §470f, together with the

Interior Secretary's regulations promulgated thereunder. Juris-

diction in the District Court as to both of these claims was

predicated upon 28 U.S.C. §1331. The Wilsons sought a declar-

atory judgment under 28 U.S.C. § 2001, et seq. and injunctive

relief against further expansion, development and operation of

the Snow Bowl in violation of these enactments. (Record,

J.A., 1, pp. 87-117; App. “A” and “B”’, pp. 39-50, 52, 78-85.)

Through its Order and Memorandum Opinion of June 12,

1981 and June 15, 1981, the District Court, Charles R. Richey,

District Judge, ruled that Respondents had not violated 16

U#®.C. §497 because the dual permit practice employed at the

Snow Bowl was both lawful in itself under the 1897 Organic

Act and had been implicitly ratified by Congress. However, the

District Court ruled that Respondents had violated the National

Historic Preservation Act and its implementing regulations by

failing to consult with the Arizona State Historic Preservation

Officer to determine if the Peaks as an entity were eligible for

listing on the National Register of Historic Places. Accordingly,

the District Court ruled in favor of the Respondents on all of

the Wilsons’ claims except those arising under the National

Historic Preservation Act, as to which it ruled against the

Respondents and remanded the matter to the Agriculture

Department for compliance with that Act. (App. “B’’, pp.

78-85.)

The consultation between the Coconino National Forest

Supervisor and the Arizona State Historic Preservation Officer

under the District Court’s remand order produced two con-

flicting views concerning why the San Francisco Peaks as an

entity were ineligible for National Register listing. Aiter apply-

ing the National Register criteria (36 C.F.R. §60.6) the Forest

Supervisor determined that the Peaks were ineligible for listing

because their significance was primarily religious rather than

historical. (App. “G’’, pp. 142, 151-155.)

The Arizona State Historic Preservation Officer rejected the

Forest Supervisor’s understanding, calling it “more spurious

than productive” because “(i]t can be documented that the

Peaks area are a natural landmark for early settlers” in Northern

Arizona and since the “[h]istorical recognition and use of the

Peaks has not been limited to the historic and modern Hopi and

Navajo people.” Finding the Forest Supervisor’s views concern-

ing the Peaks’ ineligibility for listing under the National Register

criteria to be “too narrow a view” which lacked evidentiary

support, the State Historic Preservation Officer found that

“lt)he Peaks area has a long-standing place of importance in

the history of the Hopi and Navajo; and while they may attach

primary religious value to the Peaks, the historical aspects of

those views cannot be ignored.” In applying the National

Officer found that they were of preeminent importance to the

history, culture, folklore and mythology of Southwestern

American Indians, particularly the Navajos and Hopis; and,

having served as a natural landmark for early travelers and

settlers and having functioned as a laboratory for C. Hart

Merriam’s pioneering studies of bio-ecology, were equally signi-

ficant to non-Indian patterns of American history and culture.

App. “H", pp. 160.)

Nevertheless, the Arizona State Historic Preservation Of-

ficer determined that the Peaks were ineligible as a matter of

law for National Register listing notwithstanding their histori-

cal significance. In her view the National Historic Preservation

Act protected only “a geographically definable area, urban or

rural, possessing a significant concentration of linkages or con-

tinuity of sites” each of which possessed integral, historic signi-

ficance and which in their aggregate created an area or district

of historical significance. (App. “H”, pp. 161-163.)

However, on September 17, 1981, six days after the Ari-

zona State Historic Preservation Officer issued her findings, the

Coconino National Forest Supervisor was informed in a letter

from the Western Division Chief of the Advisory Council on

Historic Preservation that counsel for the Wilsons and others

had provided the Advisory Council with “information [which]

is in sufficient detail to raise a valid question as to the eligi-

bility” of the San Francisco Peaks as an entity for National

further informed the Forest Supervisor that “we recommend

that you request a determination of eligibility from the Secre-

tary of the Interior” concerning the Peaks as an entity. As early

as August 23, 1978, the Interior Department itself, through its

Regional Environmental Officer, told the Coconino National

Forest Supervisor in a letter that the National Register criteria

“for ‘District’ nomination of cultural resources which have a

common theme and significance may be applicable to the case

of [the] Snow Bowl or the San Francisco Peaks as a whole.”

(App. “K’’, “L”, pp. 174180.)

The final decision of the Agriculture Department respecting

the remand proceedings was made by the Chief Forester, acting

through his designated deputy, R.M. Housley. Without indicat-

ing the reasons for his decision and without consulting with or

deferring to the Interior Secretary, the Chief Forester unilater-

ally ruled in a single, unexplained and undocumented sentence,

that “as an entity, the geographical area known as the San

Francisco Peaks is not eligible for nomination to the National

The Chief Forester did not resolve the difference of opinion

between the Forest Supervisor and the Arizona State Historic

Preservation Officer concerning the basis for the Peaks’ ineiigi-

bility for National Register listing. At no time did any official

of the Agriculture Department or the Forest Service ever seck

to justify the determination that the Peaks were ineligible for

listing op the grounds that they did not possess the “unique”

qualities which led the Interior Secretary to list on the National

Wilsons during the remand proceedings, possessing similar or

identical historical and cultural attributes to those possessed

by the San Francisco Peaks. (App. “I’’, pp. 165-166; Record,

J.A., V. pp. 1595-1611.)

At the conclusion of the remand proceedings and upon Res-

pondents’ motion for entry of final judgment, the District

Court issued its Memorandum Opinion and Order entering final

judgment in favor of Respondents. The District Court held that

Respondents were not under any obligation to refer the issue of

the Peaks’ eligibility for National Register listing to the Interior

Secretary and that they had not committed an abuse of discre-

tion in determining that the Peaks as an entity were ineligible

for listing since the Peaks may not have possessed the combina-

tion of unique attributes which caused the Interior Secretary to

list other similar mountains in the National Register, a view

first advanced by Respondents’ counsel in the District Court

and never employed or articulated by the Agriculture Depart-

ment or the Forest Service. (App. “C”’, pp. 92-94.)

On May 20, 1983 the Court of Appeals issued its Opinion

and entered its Judgment affirming in all respects the District

Court’s May 14, 1982 and June 12, 1981 Orders. (App. “A”

and “J”, pp. 1-50,167.) However, five months earlier while the case

was under advisement in the Court of Appeals, Northland

Recreations, Inc., sold the Snow Bow] improvements to Fair-

field Snow Bowl, Inc., an Arizona corporation; and on Decem-

ber 27, 1982 the Forest Service issued both a Special Use

Permit under the 1897 Organic Act and a Term Permit under

16 U.S.C. § 497 to Fairfield to operate the Snow Bowl. In their

material features these permits are identical to the Northland

permits described earlier, except that they expire in the year

2002 and state that they supersede the Northland permits

which were terminated upon the sale of the Snow Bowl im-

provements.

REASONS AND ARGUMENT FOR

GRANTING THE PETITION

I. THE COURT OF APPEALS’ DECISION NULLIFIES

THE STATUTE, 16 U.S.C. §49/, LIMITING THE SIZE

OF PRIVATE RECREATIONAL DEVELOPMENTS IN

THE NATIONAL FORESTS THROUGH A CON-

STRUCTION OF THE 1897 ORGANIC ACT, 16

U.S.C. §551, WHICH CONFLICTS WITH THE DECI.

SIONS OF THE SUPREME COURT AND THE PRO-

PERTY CLAUSE OF THE UNITED STATES CON-

STITUTION.

Through 16 U.S.C. §497 Congress authorized the Agricul-

ture Secretary “to permit the use and occupancy of suitable

areas of land within the national forests, not exceeding eighty

acres and for periods not exceeding thirty years, for the pur-

pose of constructing and maintaining hotels, resorts, and any

other structure or facility necessary or desirable for recreation,

public convenience or safety." Congress did not differentiate

between the kinds of permits to which the 80-acre limitation

of 16 U.S.C. §497 was applicable nor did it qualify the kinds

of recreational uses to which it applied, but instead applied the

act’s acreage limit to all such uses.

Nevertheless, the Court of Appeals holds in this case that

the Agriculture Secretary may permit private entrepeneurs to

use and occupy MORE THAN 80 ACRES through the com-

bined use of “term permits” for 80 acres or less given under

16 U.S.C. §497 and so-called revocable permits for any amount

of additional acreage issued under the third section of the 1897

Organic Administration Act [Organic Act] now codified in

16 U.S.C. §551 which allows the Secretary to “make such rules

and regulations and establish such services as will insure the

object of such reservations, namely, to regulate their occupancy

and use and to preserve the forests thereon from destruction.”

By upholding this so-called dual-permit practice, the Court of

Appeals’ decision allows the Agriculture Department to create

in the national forests large-scale, private, recreational develop-

ments, such as downhill skiing facilities like the Snow Bowl

here, even though the land use included within the so-called

revocable permit is in fact essential to and coestensive in dura-

tion with that which is authorized by the 80-acre permit and

which neither would nor could exist independently of or with-

out the land use activities included under the 80-acre permit.

To validate this practice, the Court of Appeals employs

substantive and methodological principles which conflict with

the decisions of this Court; and by effectively repealing 16

U.S.C. § 497, grants to the Executive a measure of power which

is at odds with the Constitution’s Property Clause. Speaking in

dissent, Justice Blackmun, joined by Justices Brennan and

Douglas, acknowledged the substantive importance of this

issue when he emphasized that, “as the Court . . . so plainly

reveals, the issues on the merits are substantial and deserve

resolution” because “they pose the propriet¥of the ‘dual

permit’ device as a means of avoiding the 80-acre ‘recreation

and resort’ limitation imposed by Congress in 16 U.S.C. § 497,

an issue that apparently has never been litigated and is clearly

substantial in light of the congressional expaMsion of the_limi-

tation in 1956, arguably to put teeth into the old, unrealistic

five-acre limitation.” Sierra Club v. Morton, 405 U.S. 727,

757 (1972) [Blackmun, J. dissenting] . ]

A. The Court of Appeals’ Holding Conflicts With This

Court’s Decisions Construing The Organic

Administration Act of 1897.

This issue is even more substantial now than Justices Black-

mun, Brennan and Douglas perceived it to be ten years ago in

their Sierra Club dissents. Since the dual permit practice is

dependent upon and justified by the 1897 Organic Act, 30 Stat.

35, 16 U.S.C. §551, a clear conflict now exists between the

Court of Appeals’ interpretation of that act and the construc-

tion of the Organic Act articulated by the Court five years ago.

In United States v. New Mexico, 438 U.S. 696 (1978) the

Court held that the Executive Office could not reserve national

forests for recreational use under the 1897 Organic Act. The

Court construed the 1897 Act as follows:

The legislative debates surrounding the Organic Admin-

istration Act of 1897 and its predecessor bills demonstrate

that Congress intended national forests to be reserved for

only two purposes—‘‘[t|o conserve the water flows and to

furnish a continuous supply of timber for the people.”

(citation omitted.] National forests were not to be re-

served for aesthetic, environmental, recreational, or wild-

life purposes. [quotation from floor debates omitted. ]

® Administrative regulations at the turn of the century con-

firmed that national forests were to be reserved for only

these two limited purposes. 438 U.S. at 707-708, emphasis

added.

THE logic of the New Mexico holding js clear. The power of

the Executive to regulate thesuse and occupancy of the national

forests after it creates them under the Organic Act cannot be

greater in scope than the power to create thegforests reserves in

the first instance. Thus, since the 1897 Organic Act forbids the

Executive to reserve national forests for recreational uses, that

Act likewise forbids the Executive to devote the use and occu-

pancy of the national forests to recreational purposes and uses

after the reserves have been set aside. To reason otherwise

would permit the Executive Office to accomplish indirectly,

through a mere power to regulate the use and occupancy of the

national forests, an object which Congress plainly intended to

forbid in authorizing the Executive to set aside national forests

under the 1897 Act.!

Notwithstanding the New Mexico holding, the Court of

Appeals holds that from the first decade of this century the

1897 Organic Act empowered the Forest Service to issue

permits for private occupancy and use of the forest reserves for

all purposes without limitation as to the area of land covered.

From this premises, the Court of Appeals reasons that the Act

of March 4, 1915, 38 Stat. 1101, 16 U.S.C. §497, merely sup-

plemented that pre-existing authority. This holding conflicts

with this Court’s construction of the 1897 Organic Act articu-

lated in the New Mexico case and is at odds with the Court's

clear ruling in 191] that under the Organic Act “‘the Secretar)

could not make rules and regulations for any and every pur-

pose’’ but only such as are “clearly indicated and authorized

by Congress.’’ United States v. Grimaud, 220 U.S. $06. 516

(1911), emphasis added.!

I That Congress never intended to permit the creation or use of the

national forests for recreational purposes under the 1897 Organic Act, but

in fact understood that such a use would be prohibited, is unmistakeably

clear in the Act's legislative history. Immediately prior to the Act's pas-

sage, Congressman McRae, the Act's architect and principal sponsor,

stated to Congress that national forests “are not parks,” thus echoing a

similar admonition voiced in 1893 when, in introducing the prototype of

the 1897 Act, he informed Congress that the bill was “not dealing with

parks, but forest reservations, and there is a vast difference.” 30 Cong,

Rec. 966-967 (1897); 25 Cong. Rec. 2373 (1893) (remarks of Congress-

man McRae). The difference was that parks alone were for public pleasure

and recreation; forest reserves were not and could not be so used. This

fact is further evidenced by the Act of February 28, 1899, 30 Stat. 908,

16 U.S.C. §495, in which Congress specifically authorized the use of

national forest land for sanitariums, hotels and camps by private citizens

adjacent to mineral or medicinal springs for public “health and pleasure,”

Both the Secretary and Congressional sponsors urged passage of this bill

because, as Congressman Tongue put it, “under existing regulations and

forest reservation laws there is no power vested in any of the Departments

to make any provision under the laws for the occupation of these grounds

by those who seek these springs for the erection of sanitariums, for build.

ings, or even cottages for persons desiring to fit them up, or even for camp

grounds.” 31 Cong. Rec, 3858 (1898); H.R. Rep. No. 942, 52nd. Cong,,

2d. Sess. (1898), p. 2.

If the national forests could not be created, occupied, or

used for recreational purposes under the 1897 Organic Act as

construed in the New Mexico holding, the Act of March 4,

1915, 38 Stat. 1101, 16 U.S.C. §497, at least in so far as pri-

vate, commercial construction and development of recreational

facilities is concerned, constitutes the first and only possible

grant of authority for recreational developments which were

long-term in nature and which required land use practices in

which forest lands were stripped of trees without any foresee-

able intent to reforest them. In view of the logical implications

of the New Mexico holding’s construction of the Organic Act,

the 1915 Act neither supplemented nor repealed anything, but

instead granted a power not otherwise existing with respect to

the general (recreational) and specific (tree stripping) activities

involved in private, commercial development of recreational

facilities in the national forests. More importantly, the 1915

Act was, at the same time, a clear and positive limitation upon

both the area (‘nor exceeding 5 acres”) and the period of

time (‘‘nor exceeding’ 30 years) within which only “summer

homes, hotels, stores or other structures” would be permitted.?

The Court of Appeals’ attempt to fathom a different under-

standing from the legislative history of the 1915 Act is genuinely

2 Significantly, as originally proposed and introduced, the 1915 Act

contained NO acreage limitation, but because of the Congressional fear, as

Senator Gallinger put it, that “the Department of Agriculture might let

them (the recreational developers) have a hundred or 50 or any amount”

of land, the Senate amended the bill by imposing a ten (10) acre limit.

51 Cong. Rec. 9101 (1914) (colloquy between Senators Gallinger and

Jones). Even 10 acres was deemed too excessive by the House which

limited it to five (5) acres. 52 Cong. Rec. 5505, 5323 (1915); 38 Stat.

1101 (1915). The clear and precise limitations as to area, duration and

kinds of development were deemed essential because Congress envisioned

only recreation which was NOT destructive of natural, forest conditions.

As Congressman Hawley, the sponsor, put it, “people can go and enjoy

the scenery and the fishing and hunting” in “forests that are very beauti-

ful in natural scenery” and “natural wonders.” 52 Cong. Rec. 1787

(1915) (remarks of Congressman Hawley).

unconvincing. The Court of Appeals’ quotation of Congress-

man Hawley's remarks, that the Organic Act allowed citizens

to go into the national forests “and build a temporary camp,

put up a fent, or a little camp of some kind” but “does nor

enable them to put up any important building. or ro justifi

any considerable expenditures,’ (App. “A”. p. 43, quoting

52 Cong. Rec. 1787 [1915]), proves nothing more than that

prior to the 1915 Act no authority whatever existed for devel-

opments generically similar to skiing facilities because ski runs,

lifts and related facilities are not in any way similar or com-

parable to “temporary camps,” “tents,” or “little camps.”

Instead, they are essentially permanent in nature, require sub-

stantial alteration of the land and forests of the reserves, and

destroy large areas of trees and foliage for decades and genera-

tions which “temporary camps” and “tents” plainly do not.

Moreover, the stripping of trees for ski runs and other facilities

requires substantial expenditures of man hours and heavy equip-

ment, not only in their initial creation but also in their required,

yearly maintenance and grooming.>

3tt should be noted that the 1897 Organic Act contained a general

prohibition against strip-cutting of timber over whole acres of woodlands

by specifying in Section 4 that only dead and physiologically mature trees

could be cut for commercial purposes. 30 Stat. 35. Moreover, the 1897

Act defined with particularity in Sections 5 and 7 only three land uses in

which timber could be cleared (wagon roads, schools and churches, the

latter two being limited to two acres and one acre, respectively), In its

1899 Report to Congress, the Forest Service itself condemned the very

land use practice necessary to ski slope construction when, in discussing

the silviculture technique of clear-cutting, it warned that “in Ailly country

the strips (of cut over trees) must not be made in the direction of the

slope for water would wesh out the soil and seed."" Report Upon The

Forestry Investigations of the United States Department of Agriculture,

H. Doc. No. 181, 55th Cong., $d. Sess (1899), p. 288, emphasis added; $0

Stat. 35-36 (1897).

B. The Court of Appeals’ Use Of Unsuccessful

Legislative Material Conflicts With The Decisions

Of This Court And Is Misleading.

To circumvent the clear language of limitation of the 1915

Act, the Court of Appeals notes that “Congress in the 1930's

and 1940's considered several bills that would have expanded

the Forest Service’s authority to grant term permits, but enac-

ted none of them.” From this it concludes that “these bills

are nonetheless significant because the reports they generated

gave Congress clear notice that the Forest Service was continu-

ing to issue revocable permits for recreational uses and, further,

was issuing dual permits. (App. A, p. 44-45.)

In its methodology the Court of Appeals’ reliance upon the

history of unsuccessful legislation to validate executive conduct

under the doctrine of congressional acquiescence patently vio-

lates the settled and repeated holdings of this Court. The court

squarely rejected the Court of Appeals’ methodology when in

1959 it held that ‘we do nor think that from the failure of

Congress to grant a new authority any reliable inference can

permissibly be drawn to the effect that any authority pre-

viously claimed was recognized and confirmed” by Congress.

Just as the Court has cautioned that “it is at best trecherous

to find in Congressional silence alone the adoption of a con-

trolling rule of law,” so too has it reiterated that an “‘inter-

pretation placed upon an existing statute by a subsequent

group of Congressmen who are promoting legislation and who

are unsuccessful has no persuasive significance.” T..M.E. ¥.

United States, 359 U.S. 464, 478 (1959); N.L.R.B. v. Plasterers’

Local Union No. 79, 404 U.S. 116, 129-130, note 4 (1971);

Gemsco vy. Walling, 324 U.S. 244, 265 (1945); United States v.

Wise, 370 U.S. 405, 411 (1962).

In its substantive character, the Court of Appeals’ reliance

upon unsuccessful legislation is, at best, self-contradictory and,

at worst, both misleading and not candid.* As to the former,

the very letters of the Agriculture Department quoted and

emphasized by the Court of Appeals clearly demonstrate that

the Department represented no more to Congress than that its

claimed, Organic Act permit power authorized uses only “of

relatively short duration or [which] entail only small capital

investments.” (App.“A”’, p. 45-46, quoting H.R. Rep. No. 805,

80th Cong., 1st. Sess., p. 2 (1948)). Hence, under even the

Agriculture Department’s own claimed authority, it could

NOT lawfully employ its Organic Act permit power to allow

the construction and maintenance of ski runs since these are

costly, long-term uses which radically alter natural, forest

conditions. Thus, under the most generous view of the very

material quoted by the Court of Appeals, Congress could not

possibly have obtained notice from the Executive Office that

4 although the Court of Appeals makes much of the reference to a

dual permit practice in a Senate Report on S. 773 (1932), it fails to note

that the report does not represent that such a practice or the revocable

permit was employed for long-term occupancies destructive of natural

forest conditions, More importantly, the Court of Appeals fails to ack-

nowledge that in the hearings on S. 773 the Forest Service and proponents

of the bill advocated an increase in the acreage limit precisely because

“you could not get ski grounds on 5 acres,” (Mr. Martin), thus represent-

ing to Congress that such facilities were authorized only by the 1915 Act,

not otherwise, and could not lawfully exist but for an increase in that

Act’s acreage limit. Nevertheless, noting that an increase from 5 to 80

acres would greatly increase the destruction of natural forest conditions

and would exacerbate the existing potential to evade or circumvent the

acreage restrictions by creating ‘“‘means whereby commercial interests

might get control of a large part of the public domain,” (Congressman

Polk), Congressmen expressed negative sentiments about and/or opposed

the bill to such an extent that the Assistant Forester conceded that “an

80-acre figure, with a 30-year term seems to have made an adverse impres-

sion” which he sought to correct by warranting that, if the increase were

enacted, “those are the maximum limits” for all recreation uses. See

Hearings Before A Subcommittee of the House Committee of Agriculture

on S. 773, 72d. Cong., 2d. Sess. (February 17, 1933), pp. 3-5, 7-8, 15-17,

19-21 (remarks of Mr. Martin, Assistant Forester Kneipp, and Congress-

men Polk, Adkins, Clarke and Doxey.)

a claimed Organic Act use permit power was being used to allow

costly, long-term land uses, such as ski run construction and

maintenance, in which private entrepeneurs permanently

alter natural forest conditions within areas of the national

forests exceeding the acreage limits imposed by the 1915 Act.

Even more troubling is the Court of Appeals’ misleading and

uncandid use of the unsyccessful legislative material which it

cites, quotes, and relies upon. In the House and Senate Reports

of 1947-1948 THERE IS ABSOLUTELY NO MENTION

WHATEVER OF A DUAL PERMIT PRACTICE, either in the

text of the Reports or in the Acting Agriculture Secretary’s

appended letter.> Significantly, Acting Agriculture Secretary

Brannan’s letter unconditionally avows that the 1915 Act is

“the only present authority for long term occupancy permits.”

More importantly, the Acting Secretary’s letter affirmatively

represents to Congress that winter sports facilities, like the

Snow Bowl here, were considered by the Department itself to

be long-term uses authorized only by the 1915 Act whose

authority was, in the Department’s view, inadequate to permit

such uses in the national forests. Acting Secretary Brannan

informed Congress in his letter that the “disadvantages of the

The 1948 bill to which these reports have reference was H.R. 1801

which, as drafted and recommended by the Agriculture Department,

would have raised the 1915 Act's acreage limit from five to 80 acres for all

national forest lands. However, the House Committee limited the 80 acre

increase to Alaska forest land only and retained the five acre limit for all

other national forests in which form it was passed by Congress. 16 U.S.C.

$4974. In the Committee hearings Congressman Goff of Idaho explained

to Assistant Chief Forester Granger that a nation-wide increase in the

acreage limit was not warranted because of the concern for “the possible

abuses of the authority given by the bill” whose scope was thought to

be “very broad.” Goff further noted the fear that the bill was inimical

to the desire “not to get too many commercial establishments in our

National Forest areas” so as to enhance “the preservation of these beauti-

ful areas.” Hearings Before Subcommittee No. 2 of the House Committee

on Agriculture on H.R. 1809, 80th Cong., 2d. Sess. (June 19, 1947),

pp. 5-6.

present law is its fixation of five acres as the maximum area for

which a term permit can be issued to any one person or associa-

tion” and that “5 acres frequently is quite inadequate” for such

uses as “winter sports facilities [which] are often strung out,

especially ski lifts, etc. and need elbow room.” H.R. Rep. No.

805, 80th Cong., 1st. Sess. (1947), p. 2: S. Rep. No. 899, 80th

Cong. 2d. Sess. (1948), p. 2.

When in 1956 Congress amended the 1915 Act, it did NOT

strike the acreage limit as it would have done had security of a

permittee’s tenure been the only purpose. Although it could

have selected any acreage limit or none at all, Congress not only

chose an 80-acre limit but also elected to frame it within the

clearest, most emphatic language of limitation known to the law

(which, in fact appears eight (8) times in the amended act 6

Significantly, the 1956 amendment does not differentiate

between the kinds of permits to which the 80 acre limit applies

but, instead, refers broadly to all permits for the specified use

of recreation. 16 U.S.C. §497.

More importantly, Congress extended the scope of recrea-

tional land uses subject to the new acreage limit to the maxi-

mum extent possible and far beyond the comparatively narrow

objects over which the original 1915 Act operated. While the

original enactment applied to the “construction of summer

homes, hotels, stores, and other structures for recreation,”

38 Stat. 1101, Ch. 144, the 1956 amendment extended the

land-use activities to which the acreage limit was applicable

far beyond only structures and, for the first time ever, applied

6This seemingly obvious point becomes hopelessly lost in the Court

of Appeals’ decision and thus merits emphasis. ““The language is not only

unmistakeably clear, but mandatory . . . because the words ‘not exceeding’

are express words of limitation only —words which control the term(s) (as-

sociated with it) . . . and fix the line beyond wiuch . . . (they) cannot go.”

The “words ‘not exceeding,’ in themselves are words not of grant or ap-

pointment but of limitation only.” Boston & M.R.R. v. United States,

263 Fed. 578, 579 (1st. Cir., 1920); City of Kingsville v. Meredith, 103

F.2d 279, 281 (5th Cir., 1939).

it unqualifiedly to ‘any other structure or facility necessary or

desireable for recreation, public convenience, or safety.’’ 70

Stat. 708, Ch. 711, 16 U.S.C. §497. If Congress had intended

to confine the act’s scope only to buildings or structures, it

would never have performed the purely futile act of radically

altering the law's terminology and of separately specifying that

the acreage limit applied without qualification to “any other

facility’’ which was either ‘necessary or desireable for recrea-

tion.”’ Neither the Court of Appeals nor the Executive have any

power to eradicate or limit this plain, clear, and unqualified

terminology chosen by Congress.’

‘The term “facilities” is ‘ta widely inclusive term embracing anything

which aids or makes easier the performance of the activity involved in the

business of a person or corporation,” and “is broad enough to include...

the grounds” adjacent to structures. Chess v. Widmar, 635 F.2d. 1310,

1315, note 4 (8th Cir., 1980), aff'd sub nom. Widmar v. Vincent, 445 U.S.

263 (1981); Hartford Electric Light Company v. F.P.C., 131 F.2d 953,

961 (2nd. Cir., 1942), aff'd, 319 U.S. 61 (1943), This is emphatically not

a case in which the breadth of that term may be constricted or nullified

under the doctrine of ratification through re-enactment because that

principle NEVER APPLIES and no administrative practice is ever adopted

“where there are material changes or additions in the later act" or ‘where

the law is plain and clear," both of which factors are here present. ‘Here

there has been an entire rephrasing and restructuring of the statutory pro-

vision, a circumstance which always warrants a fresh determination of

meaning free of the influences of old decisions, interpretations and admin-

istrative practices.” Volkswagen of America, Inc. v. United States, 340 F.

Supp. 983, 989 (Cust. Ct., 1972), aff'd. 484 F.2d. 703 (Cust. & Pat. App.,

1973); Biddle v. C.ILR., 302 U.S. 573, 588 (1937); 73 Am. Jur. 2d. “Sta-

tutes” §324, p. 471. Even if Congress had clear notice of a past, dual-

permitting practice and an intent to continue it—and it did not—the radical

restructuring and rephrasing of the 1956 amendment more properly places

it within the rule that where “the legislature has responded to (the agen-

cy’s) past interpretation and administration with severe censure, the

general presumption that the agency has correctly discerned and imple-

mented the intent of the legislature, would seem singularly inappropriate”

and will not be applied. Cy Ellis Raw Bar v. District of Columbia Redevel:

opment Land Agency, 433 F.2d. 543, 548 (D.C. Cir., 1970); March v.

United States, 506 F.2d, 1306, 1316-1317 (D.C. Cir., 1974).

Inspite of the broad sweep and plainly unqualified terms of

the 1956 amendment’s acreage limitation on recreational uses,

the Court of Appeals reasons that ski runs are not within its

scope because, in a committee report “Congress expressed ap-

proval” of the dual permit practice through the committee's

statement that ‘(t]he Department of Agriculture now has

adequate authority to issue revocable permits for all purposes

under the act of June 4, 1897" and that “[i]ts authority to

issue term permits, and the extent to which such authority

would be broadened” under the 1915 Act were specified in

the amendment. (App. “A", p. 46 quoting in part S. Rep. No.

2511, 84th Cong., 2d. Sess. (1956), p. 1 and H.R. Rep. No.

2792, 84th Cong., 2d. Sess (1956), p. 2.) This statement

neither explicitly nor implicitly suggests or permits the con-

struction that the two permits had been or could in the future

be combined or that revocable permits could be used for long-

term occupancy of the forest reserves and thus does not permit

the reading which the Court of Appeals attaches to it. Substan-

tively, the Committee Report's view of the 1897 Act directly

conflicts with the Court's interpretation of that Act in the New

Mexico and Grimaud holdings discussed earlier, and we know of

no rule of law which permits an intermiediate appellate court to

prefer a single, loose sentence in a committee report to this

Court's clear precedent. Methodologically too, the Court of

Appeals’ transformation of a committee report's views of the

1897 Act into judicial precedent which is at odds with the

Court's New Mexico and Grimaud decisions is anathema to the

Court's repeated admonition that “the views of one Congress as

to the construction of a statute adopted many years before by

another Congress have very little, if any, significance,” espec-

ially where they are manifested in “a mere statement in a

conference committee report.” United States v. Southwestern

Cable Company, 392 U.S. 157, 170 (1968); Consumer Products

Safety Commission v. G TE. Sylvania, Inc., 447 U.S. 102. 117-

118, note 13 (1980); Limited States ». Clark, 445 U.S. 23, 33,

note 9 (1980): United States » Wise, 370 U.S. 405, 414 (1962).

Even if the Court’s precedents in the New Mexico and

Grimaud decisions could be ignored, one still could not possibly

conclude that in 1956 Congress had notice of or ratified, either

expressly or implicitly, the use of revocable permits for ski

runs, landing fields, or any long-term, private use of the national

forests requiring alteration of natural forest conditions, let

alone the combined use of such permits with term permits. This

is so because the letter-comments of the Acting Agriculture

Secrecary included in both the House and Senate Reports on

the bill MADE NO REFERENCE WHATSOEVER TO THE

COMBINED USE OF TERM AND REVOCABLE PERMITS

and thus, like the committee reports themselves, were inherent-

ly incapable of giving Congress any notice that it was being

asked to ratifv any kind of departmental practice. Equally

important, as in the late 1940's and early 1930's, the Acting

Agriculture Secretary himself claimed no more for the revo-

cable permit authority than that it was applied and used for

short-term, temporary occupancy only and functioned only as

authority, to quote his letter, “for uses for which long-term

tenure is unnecessary or undesirable.” In that same letter

endorsing the 1956 amendment, the Secretary again represented

to Congress that the amendment was essential to permit the use

and occupancy of forest lands ‘up to 80 acres for such public

and semi-public uses as landing fields, resorts, camp grounds,

picnic areas, organization camps and ski lifts, and to industrial

and commercial enterprises,” thus placing the very kinds of

uses here at issue squarely within the 1956 amendment and

completely outside the scope of any claimed, Organic Act

revocable permit power. HR. Rep. No. 2792, 84th Cong., 2d.

Sess. (1956), p. 3; S Rep. No. 2511, 84th Cong., 2d. Sess.

(1956), p. 3 [Letter of Acting Agriculture Secretary True D.

Morse. |

Of vital importance here is the cold fact, ignored by the

Court of Appeals, that the Department's own examples of

long-term land uses cited by the Secretary's 1956 letter-com-

ments as being the kinds of uses for which additional authority

was necessary and which would “not exceed 80 acres,” are

generically identical to ski runs, a fact which vitiates the Court

of Appeals’ holding. While a ski lift may be a structure, a land-

ing field is not but is often only a dirt strip providing primary or

secondary access to some structural or natural source of recre-

ation. Like a ski run, a landing field is an area of land cleared

of trees, stumps and rocks by men and machinery which will be

used for a period of years, not as a forest, but as a means to

the pursuit of some sport or pleasure. A skirun is no different

in kind or in its essential land use characteristics from a landing

field and is no less a “facility” subject to the 80-acre limit than

the landing field specifically cited by the Agriculture Secre-

tary’s letter to the 1956 Congress. In view of the plain and

unqualified sweep of the 1956 amendment’s 80-acre, recrea-

tional use limitation, the Secretary's express representations to

Congress that land use activities identical to ski runs were long-

term uses subject to the 80-acre limitation, and the complete

absence of anything in the committee reports which would give

clear notice to Congress that the Department had in the past

and would continue in the future to avoid the acreage limita-

tion through the combined use of revocable and term permits,

the Court of Appeals simply exceeded its constitutional auth-

ority by effectively repealing the plain, clear, and positively

limiting words of 16 U.S.C. § 497.8

Sunder this Court's New Mexico holding the Forest Service posses-

sed absolutely no power other than that conferred in 16 U.S.C. § 497 to

manage and use the national forests generally for outdoor recreation unti!

1960 when Congress enacted the Multiple Use-Sustained Yield Act, 16

U.S.C. § 528, et seg. In the New Mexico case the Court specifically

rejected the Government's contention that the 1960 Multiple Use Act

merely confirmed powers which had always existed and held that the

1960 Act was “intended to expand the purposes for which the national

forests should be administered,” 438 U.S. at 713, note 21, thereby creat-

ing spheres of authority which had not existed under the Organic Act.

C. The Court of Appeals’ Decision On The Revocability

Issue Is At Odds With The Property Clause And Con-

flicts With A Ninth Circuit Decision And Attorney

General Opinions

The Court of Appeals simply nullifies the 1956 amendment

when it superimposes upon it a fictitious exception for ski

runs. The undeniable, physical fact is that the life of a ski run

is co-extensive with and equal to that of the ski lift, and the

former is no less permanent than the latter. The magnitude of

tree stripping, land clearing, or earth moving and grading neces-

sary to create ski runs is at feast equal to that required for ski

lifts and, in fact, is arguably greater since there are more runs

than lifts in skiing facilities. Moreover, a ski run is useless and

Moreover, the Neu Mexico decision holds that the 1960 Multiple Use

Act, while expanding the uses of national forest land to include outdoor

recreation, “indicates that recreation, range use, and fish purposes are ‘to

be supplemental to, but not in derogation of, the purposes for which the

national forests were established’ under the Organic Administration Act of

1897" and that, as such, recreational uses constitute “secondary pur-

poses” whose scope would not be enlarged by implication “without legis-

lative history to the contrary.” 438 U.S. at 714-715. Nothing in the

general terms of the Multiple Use Act or its legislative history suggests that

it was intended to repeal the clear and positive acreage limitations of 16

U.S.C. § 497, amended only four (4) years earlier, and no such reading of

the 1960 Act is legally permissible since “repeals by implication are not

favored.” Watt v. Alaska, 451 U.S. 259, 276 (1981).

In addition, the Neu Mexico decision indicates that the secondary

purposes established by the 1960 Multiple Use Act, like outdoor recrea-

tion, could not exist where their land use activities were detrimental to

the primary purposes of the national forests: water and timber conserva-

tion, Stripping of trees for ski slopes is by its nature injurious to both

because it promotes erosion and permanently reduces timber acreage. The

Fourth Circuit has held that the 1960 Multiple Use Act did not authorize

the Forest Service to employ the silviculture technique of “clear-cutting”

even though reforestation would recur. West Virginia Division of Izaak

Walton League v. Butz, 522 F.2d. 945, 953-954 (4th Cir., 1975). The

more egregrious activity of stripping all trees without any foreseeable

intent to reforest, as in the case of ski slopes, would be ever more force-

fully forbidden by both the 1960 and the 1897 Acts.

would not exist but for the ski lifts (and vice-versa), and the

simple axiom that skiers who ascend the mountain on ski lifts

must descend on the ski runs renders the runs a necessary, es-

sential and primary “facility” as that term is used in 16 U.S.C,

§ 497 required for the sport of downhill skiing.

Since both ski runs and ski lifts are inseparable parts of a

unified land development and are interlocked and interrelated

in their nature, the permits which authorize them partake of

the same essence; and a so-called revocable permit exceeding 80

acres for ski runs, when linked to a term permit for ski lifts,

is in fact a term permit for more than 80 acres regardless of the

label given to it. Under these circumstances merely labeling as

revocable the 753-acre Special Use Permit for the Snow Bowl’s

ski runs does not make it so in substance and fact, especially

in view of the fact, not questioned by the Court of Appeals,

that it is expressly linked in its terms, fee computation schedule

and expiration date with the 24-acre Termr Permit and, under

the Agriculz:ure Department’s own regulations, cannot be re-

voked without a rational basis and administrative review pro-

cedures. Being inextricably tied by the nature of its land use

(which cannot stand alone), money, improvements and the

unitary recreational purpose of the entire ski area development

which underlies both permits, the Special Use Permit is secured

for precisely the same period of time as the Term Permit inspite

of the clear mandate of 16 U.S.C. § 497. To reason otherwise

would flout the axiom that “the Court will penetrate beyond

the covering of form and look at the substance of a transaction,

and treat it as it really and in essence is, however it may seem.”

Gay v. Parpart, 106 U.S. (16 Otto) 679, 699 (1883).

As such, the Court of Appeals’ decision collides with opin-

ions of the Attorney General and an early Ninth Circuit deci-

sion respecting the power to issue and the revocability of the

753-acre Special Use Permit. The Attorney General’s Opinions

indicate that a permit for the use of government property is

revocable and may issue as such only when “however long con-

tinued, rhe occupancy is subject in theory and in fact to imme-

diate terminai.on at any time at the will of the Government.”

These opinions further hold that ‘‘an alienation or what amounts

to a transfer or surrender of Government property, by which

title, control or possession of the Government is lost

reduced, or abridged” may occur only in the manner specified

by Congress and not otherwise. 34 Op. Att'y Gen. 320, 323,

327-328 (1924); accord, 35 Op. Att'y Gen. 485, 489 (1928),

emphasis added.

And, in Osborne v. United States, 145 F.2d. 892 (9th Cir.,

1944) the Ninth Circuit Court of Appeals squarely held that

16 U.S.C. §551 empowers the Forest Service to do no more

than to ‘make and enforce regulations appropriate to the pre-

servation of natural growth” in the national forests and that

“the mere authority given the forest service to make appro-

priate regulations carries with it no authority to alienate for any

period of time any phase of government right over the full use

of its land.” The Ninth Circuit stressed that “(n]o grant of

United States property may be made except by virtue of Con-

gressional authorization” and then only in the manner speci-

fied by Congress, not otherwise. 145 F.2d. at 896, emphasis

added, citing Art. 4, §3, Const. and Shannon v. United States,

160 Fed. 870 (9th Cir., 1908).

The result reached by the Court of Appeals on the revoca-

bility issue conflicts with these authorities since the 753-acre

Special Use Permit for the Snow Bowl creates a de-facto aliena-

tion of national forest land in favor of private developers in a

manner NOT authorized by Congress. When linked to the

Term Permit, the Special Use Permit exceeds the 80-acre limit

of 16 U.S.C. §497 even though it in fact gives the permittee the

same security of tenure provided by that statute. By nullifying

the plain will of Congress manifested in 16 U.S.C. §497, the

Court of Appeals’ decision is at odds with the Property Clause,

the Osborne, New Mexico and Grimaud holdings and possesses

far reaching and substantial implications respecting the disposi-

ae!

tion of government land to private entrepeneurs which trans-

cend the land use statutes here at issue and affect the interrela-

tionship of Congress and all Executive Departments in matters

of public land disposition.? These factors, coupled with the

direct conflict between the Court of Appeals’ decision and this

Court’s substantive interpretation of the 1897 Organic Act raise

issues of substantial and far-reaching importance which call for

this Court to review the issue of the validity of the dual permit

practice through its certiorari power.

Neither the existence of some 200 ski developments, “most” of

which employ dual permits nor the fact that the Forest Service has con-

tinued to issue dual permits since this Court's Sierra Club decision, supra,

constitutes relevant, persuasive or convincing proof of the validity of the

dual permit practice amy more than such factors should preclude full

review of that issue. This Court has consistently held that “:t matters not

what the practice of the department may have been or how long contin-

ued"’ where the agency's practice is contrary to a statute, here 16 U.S.C.

§497, which is “clear and explicit in its language,” is “inconsistent with a

statutory mandate”’ or “frustrates the congressional! policy underlying a

statute.” United States v. Graham, 110 U.S. 219, 221 (1884); Federa!

Maritime Commission v. Seatrain Lines, 411 U.S. 726, 746 (1973). More-

over, while the legitimacy of other ski areas has never been questioned, at

the Snow Bowl here new permits were issued to a successor corporation

while the dual permit issue was under judicial scrutiny. In cases like this

the Court has not shyed from full review and a principled decision, not-

withstanding the size of investment capital at stake, but has employed its

inherent, equitable power to afford full relief to a prevailing plaintiff while

staying or applying prospectively its decision to other individual cases

where substantial, inequitable results would occur or where the orderly

administration of government would be disrupted. Cipriano v. Houma,

$95 U.S. 701, 706 (1969); Northern Pipeline Construction Company v.

Marathom Pipe Line Company, US. ,102 S.Ct. 2858, 2880 (1982).

Moreover, administrative practice since the Ninth Circuit's dictim in

the Sierra Club case, supra, is irrelevant because this Court has repeatedly

held that it “does not expect Congress to make an affirmative move every

time a lower court indulges in an erroneous interpretation” of a statute

since “the original legislative language speaks louder than such judicial

action.” Jones v. Liberty Glass Company, 332 U.S. 524, 533-544 (1947).

Indeed, when Congress ended the Mineral King controversy involved in

the Sierra Club case by divesting the Forest Service of jurisdiction over the

valley and adding it to the Sequoia National Park, Congress specifically

prohibited “the development of permanent facilities for downhill skiing mn

the area,” 16 U.S.C. §45f(h), 92 Stat. $483 (1978), emphasis added, thus

employing landguage identical to that containedin 16 U.S.C. §497 so as to

proscribe ski runs, lifts, tows, lodges and anything else connected with

such developments.

Il. THE COURT OF APPEALS’ HOLDING THAT THE

SAN FRANCISCO PEAKS AS AN ENTITY ARE IN-

ELIGIBLE FOR PROTECTION AND LISTING UN-

DER THE NATIONAL HISTORIC PRESERVATION

ACT CONFLICTS WITH DECISIONS OF OTHER CIR-

CUIT COURTS OF APPEALS AND IS CONTRARY

TO THE TERMS OF THE ACT, ITS IMPLEMENTING

REGULATIONS AND INTERIOR DEPARTMENT

PRACTICE.

Section 101a(a)/1)(A) of the National Historic Preservation

Act, 16 U.S.C. §470a(a)(1 (A), authorizes the Interior Secretary

and him alone, “to expand and maintain a National Register of

Historic Places” by listing thereon “districts, sites, buildings,

structures, and objects significant in American history, archi-

tecture, archeology, engineering and culture.” The duly pro-

mulgated regulations likewise designate the Interior Secretary to

be the final arbiter of disputes or questions involving the eligi-

bility of properties for inclusion in the National Register of

Historic Places by providing in 36 C.F.R. §800.4(a)(3) that

“if either the Agency Official or rhe State Historic Preserva-

tion Officer find that a property meets the National Register

Criteria, or a question exists as to whether a property meets

the Criteria, the Agency Official shall request a determination

of eligibility from the Secretary of the Interior’ whose opinion

‘shall be conclusive.” Accord: 36 C.F.R. § 63.2(c).

In Stop H-3 Association v. Coleman, 533 F.2d. 434 (9th

Cir., 1976), cert. denied sub nom., Wright v. Stop H-3 Associa-

tion, 429 U.S. 999 (1976) the Ninth Circuit Court of Appeals

enjoined the construction of a highway through the Moanalua

Valley in Hawaii and upheld the Interior Secretary's determina-

tion that the Valley “may be eligible for inclusion in the Na-

tional Register” because it “contains Kamanui, the valley of the

great power and Waolani, the valley of the spirit which was, in

tradition, ‘the dwelling place of the gods’ ” and since “(t]he

forests of the valley retain a traditional natural state associated

with the legend and history of the area” and “Hawaiian folklore

and tradition” which “continues into the 20th century.” 533

F.2d. at 436, note 1. The Ninth Circuit further held that under

the National Historic Preservation Act “the Interior Secretary is

the ONLY official authorized to name properties to the National

(a)(3)] expressly and unambiguously provides that ‘if it is ques-

tionable’ whether a property meets National Register Criteria,

the responsible agency official shall request the Interior Secre-

tary’s opinion.” 533 F.2d. at 441, 444, emphasis added; accord

Aluli v. Brown, 437 F.Supp. 602, 610 (D. Hawaii, 1977) rev'd

on other ground, 602 F.2d. 876 (9th Cir., 1979) [entire island

“might qualify” for listing}.

Likewise, in New Mexico Navajo Ranchers Association 3

Interstate Commerce Commission, 702 F.2d. 227 (D.C. Cir.,

1983) a different panel of the Court below, speaking of an

area “rich in. . . sites of religious significance to the Navajo,”

held that the I.C.C. violated the National Historic Preservation

Act by failing to defer to the Interior Secretary before it ap-

proved construction of a rail line through that area. 702 F.2d.

at 232. ‘Where, as here, a factual question within the primary

responsibility of a sister agency [Interior] is relevant to the

ICC’s determination, the ICC should ordinarily defer by staying

its decision pending a determination of the issues by the sister

agency and then considering and acting upon that agency's

finding.” 702 F.2d. at 232-233.

In addition, the record before the Forest Service, the Dis-

trict Court and the Court of Appeals demonstrates without con-

tradiction that the Interior Secretary has consistently listed on

the National Register mountains and other properties of a size,

geography and significance identical to that which the Arizona

State Historic Preservation Officer found the San Francisco

Peaks to possess. The Interior Secretary has listed Inyan Kara

Mountain in Wyoming's Black Hills National Forest and Bear

Butte in South Dakota's Black Hills because these mountains as

an entity are “central landmark(|s] for Cheyenne {and Sioux]

religion” and were “landmark|s]| for explorers and travelers” in

the area. As recently as 1981 the Interior Secretary also listed

the Helkau District of the Six Rivers National Forest because of

its “past ritual use by Native Americans” even though precise

geographical delineation of loci or sites of specific significance,

which included numerous and diverse “trails, peaks and valleys”

was not possible. ‘Record, Joint Appendix, Vol. IV, pp. 1245,

1278-79, 1284.) See U.S. Department of Interior, National

Park Service, The National Register of Historic Places (1976

ed.), pp. 704, 867-68.

By holding that the San Francisco Peaks are ineligible for

National Register listing, Interior Department review, or the

Act’s protection, the Court of Appeals’ decision here conflicts

with the plain terms of the Act, its implementing regulations,

settled Interior Department practice, and the decisions of the

Ninth Circuit Court of Appeals discussed above. (App. “A”,

pp. 40-41.) This conflict will result in substantial confusion

respecting the meaning, administration and enforcement of the

National Historic Preservation Act and will make compliance

with it difficult and uncertain. Given this and Congress’s de-

clared policy to preserve and protect historically significant

properties managed by the federal government in a spirit of

stewardship for future generations, 16 U.S.C. §470, §470-1,

§470f. we submit that certiorari should be granted to review

this important issue.

CONCLUSION

Based upon the foregoing, we submit that this Petition for

Writ of Certiorari to the Court below should be granted.

Respectfully submitted,

Douglas J. Wall for

Mangum, Wall, Stoops & Warden

P.O. Box 10

Flagstaff, Arizona 86002

Telephone: 602-774-6664

Attorneys for Petitioners

| Appendix Separately Printed and Filed |

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