Petition for A Writ of Certiorari — YELLOWSTONE PINE CO. V. UNITED STATES (No. 74-1071)

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JAN 18

MICHAEL RODAK,

IN THE SUPREME COURT

OF THE UNITED STATES

YELLOWSTONE PINE COMPANY,

Petitioner,

vs.

THE UNITED STATES, et. al.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE UNITED STATES

ANDERSON & DASINGER

COUNSEL FOR PETITIONER,

24 South Willson Avenue

P.O. Box 607

Bozeman, MT 59715

ANDERSON &’*DASINGER

COUNSEL OF RECORD

24South Willson Avenue

P.O. Box 607

Bozeman, MT 59715

Se een mee Ae RET

No

IN THE SUPREME COURT

OF THE UNITED STATES

YELLOWSTONE PINE COMPANY,

Petitioner,

vs.

THE UNITED STATES, et. al.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT i

OF THE UNITED STATES

ANDERSON & DASINGER

A

COUNSEL FOR PETITIONER,

24 South Willson Avenue

P.O. Box 607

Bozeman, MT 59715

ANDERSON & DASINGER

COUNSEL OF RECORD

24South Willson Avenue

P.O. Box 607

Bozeman, MT 59715

i

IN BD ia diieieeteneskiaicipaleniasiane

Jurisdiction

Questions Presented

Statutes Involved

Statement

Reasons for granting this writ ‘

Conclusion a

SONA WN =

Appendix A.

Order of the United States Court of Claims

of November 15, 1974 as tavaicshanaatienons 12

TABLE OF CASES

Bydlon v. United States, 175 Fed. Supp. 891

(Cy. Ch 9) ~.. 9

Perko et. al., v. United States, 108 Fed. Supp.

315 (D. Minn.), aff’d. 204 F. 2d. 446

(8th Cir.), cert. denied, 346 U.S. 832 (1953).. 9

STATUTES

Title 28 United States Code, Section 1255 (1)............ 2

Public Law 86-517 3

Public Law 88-577 ib nipcatihibiadiaatenieliace 3

i BE De ae. S. Ree RR ee eee 8

5

4

|

Title 16 United States Code Section 478

Title 16 United States Code Section 531 ....000....00000....

Title 16 United States Code Section 1134 ....0000000000....

TEXT BOOK

None

MiSCELLANEOUS

USDA Forest Service Environmental Impact

Statement, Multiple Use Plan Porcupine-Buffalo

Horn Planning Unite Gallatin Ranger District,

Gallatin National Forest, Northern Region ................. 7

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IN THE SUPREME COURT

OF THE UNITED STATES

YELLOWSTONE PINE COMPANY, ) No. ..........

Petitioner, )

vs. )

THE UNITED STATES, et al., )

Respondent. )

)

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE UNITED STATES

TO THE HONORABLE, THE CHIEF JUSTICE

AND ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE UNITED STATES:

YELLOWSTONE PINE COMPANY, the

Petitioner herein, prays that a writ of certiorari issue

to review the judgment of the United States Court

of Claims entered in the above-entitled case on November

15, 1974.

I OPINIONS BELOW

The opinion of the United States Court of Claims

is unreported and is printed in Appendix A, hereto,

infra:

II JURISDICTION

a) The order of the United States Court of Claims

printed in Appendix A, hereto, was entered on Novem-

ber 15, 1974;

b) There has been no application for a rehearing

in the United States Court of Claims nor has there been

aabieae:

any application for an extension of time within which

to file a petition for a Writ of Certiorari; .

c) The jurisdiction of the Court is envoked under

Title 28, United States Code Section 1255 (1);

Ill QUESTION S PRESENTED

a) What right does a land owner have to gain

ingress and egress from its land-locked pro-

perty surrounded by the public domain which

is administered by the United States Forest

Service?. \

b) Does the refusal of the United States Forest

Service to act upon a special use permit consti-

tute a taking of a owner’s land-locked property

under the Fifth Amendment to the United States

Constitution?

c) Where there is no appeal from a decision o2

the United States Iorest Service denying a

corporate owner access to its land-locked pro-

perty, is such a denial a taking of private

property which entitles the owner to damages

under the Fifth Amendment to the United

States Constitution on the eon inverse con-

demnation?

d) May the United States Peanit Service deny a

special use permit to an owner of land-locked

property surrounded by public domain adminis-

tered by the United States Forest Service on the

grounds that to grant ingress and egress to

the owner would be detrimental to adjacent

Forest Service values.

e) Where the announced policy of the United States

Ba

rai et aci

Forest Service through an environmental Impact

Statement is to create a wilderness area and to

prevent logging of ‘the private ownership land

in an area of Public Domain where there exists

a checker board land ownership pattern created

by grants to a railroad company, should the

United States Forest Service proceed under the

Multiple Use Law (P.L. 86-517) or the Wilder-

ness Act (P.L. 88-577) ?

f) Where the announced policy of the United States

Forest Service creates in fact, a Wilderness

area in a checker board land pattern of owner-

ship by denying the private owner ingress, arid

egress to the owners land, is the owner entitled

to compensation under the Wilderness Act (P.L.

88-577 Section 5). 7

- g) Is a corporate owner of a land-locked property

surrounded by public domain and administered

by'the United States Forest Service an “actual

, settler”’ under Title 16, United States Code,

Section 478?

IV. STATUTES INVOLVED:

The Statutes involved in this writ of Cetiorari are

as follows:

a) Title 16 United States Code, Section 478:

Egress and ingress of actual settlers —

Prospecting. — Nothing herein (Section 473,

478, 479-482, 551 of this title) shall be construed

as prohibiting the egress or ingress of actual

settlers residing within the boundaries of such

reservations (national: forests), or from cross-

ing the same to and from their property or

é | gelled

b)

CAT RN ae PS

homes ; and such wagon roads and other improve-

ments may be constructed thereon as may be

necessary to reach their homes and to utilize

their property under such rules and regulations

and may be prescribed by the Secretary of the

Interior (Agriculture). Nor shail anything

herein prohibit any person from entering upon

such national forests for all proper and lawful

purposes, including that of prospecting, locating,

and developing the mineral resources thereof:

Provided, that such persons comply with the

rules and regulations covering such forest reser-

vations (national forests). (June 4, 1897, c. 2,

Section 1, 30 Stat. 36).

Title 16 United States Code, Section 531: ©

Definitions. — As used in this Act (Sec-

tions 528-531 of this title), the following terms

shall have the following meanings:

(a) “Multiple use” means: The manage-

ment of all the various renewable surface

resources of the national forests so that they

are utilized in the combination that will best

meet the needs of the American people; making

the most judicious use of the land for some or

all of these resources or related services over

areas large enough to provide sufficient latitude

for periodic adjustments in use to conform to

changing needs and conditions; that some land

will be used for less than all of the resources;

and harmonious and coordinated management

of the various resources, each with the other,

without impairment of the productivity of the

land, with consideration being given to the rela-

tive values of the various resources, and not

Sackiianie

necessarily the combination of uses that will

give the greatest dollar return or the greatest

unit output.

(b) “Sustained yield of the several pro-

ducts and services” means the achievement and

maintenance in perpetuity of a high-level annual

or regular periodic output of the various renew-

able resources of the national forests without

impairment of the productivity of the land. (June

12, 1960, P.L. 86-517, Section 4, 74 Stat. 215.)

Title 16 United States Code, Section 1134:

State and private lands within wilderness

areas, — (a) Exchange of lands. — In any case

where State owned or privately owned land is

completely surrounded by national forest lands

within areas designated by this Act (Section

1131 and note — 1136 of this title) as wilder-

ness, such State or private owner shall be given

such rights as may be necessary to assure

adequate access to such State-owned or privately

owned land by such State or private owner and

their successors in interest, or the State owned

land or privately owned land shall be exchanged

for federally owned land in the same State of

approximately equal value under authorities

available to the Secretary of Agriculture:

Provided, however, That the United States shall

not transfer to a State or private owner any

mineral interests unless the State or private

owner relinquishse or causes to be relinquished

to the United States the mineral interest in the

surrounded land.

(b) Ingress and Egress. — In any case where

valid mining claims or other valid occupancies

sen

are wholly within a designated national forest

wilderness area, the Secretary of Agriculture

shall, by reasonable regulations consistent with

the preservation of the area as wilderness, permit

ingress and egress:to such surrounded areas by

means which have been or are being customarily

enjoyed with respect to other such areas similarly

situated.

(c) Acquisiting. — Subject to the appropriation

of funds by Congress, the Secretary of Agricul-

ture is authorized to acquire privately owned

land within the perimeter of any area designated

by that Act (Section 1131 and note — 1136 of

this title) as wilderness if (1) the owner con-

curs in such acquisition or (2) the ecquisition

is specifically authorized by Congress. (Sept.

3, 1964, P.L. 88-577 Section 5, 78 Stat. 896.)

V. STATEMENT:

(a) Statement of case.

On April 30, 1965, the Northern Pacific Railway

Company sold to the Plaintiff, Yellowstone Pine Com-

pany, all of the timber growing in the Porcupine-Buffalo

drainage of the Gallatin National Forest located near the

N.W. Corner of Yellowstone National Park, owned by

the Northern Pacific Railway Company. The Northern

Pacific Railway Company’s ownership in the Porcupine-

Buffalo Hora Drainage is in a checker board pattern

which was caused by the United States granting alternate

sections of land to the railroads as a subsidary for

building the railroad.

Burlington-Northern, Inc., is the successor in

sodas

interest to the Northern Pacific Railway Company. The

contract between Yellowstone Pine Company and the

Burlington-Northern, Inc., will terminate on December

31, 1976.

The Plaintiff, Yellowstone Pine Company made

application to the U.S. Forest Service for a special use

permit in 1967 for an order to gain access to and har-

vest the Burlington-Northern timber. Congress appro-

priated part of the money to build the road access in

order to harvest the timber. Two road routes were

surveyed, and the Forest Service and the Burlington-

Northern, Inc., were unable to agree between themselves

as to which road was to be used. The money appropriated

for the Porcupine-Buffalo Horn drainage was used by

the Forest Service on another road project in the

Gallatin National Forest.

The Forest Service refused to grant a special use

permit to be, Yellowstone Pine Company, until its en-

vironmental impact statement was issued, one of the

issues in tthe impact statement was to determine if

Yellowstone Pine Co. should be granted the requested

permit.

The delay by the U.S. Forest Service in issuing its

environmental impact statement until May 1974, makes

it impossible for Plaintiff, Yellowstone Pine Company

to harvest the timber sold to it by the Burlington-

Northern, Inc., in the Porcupine-Buffalo Drainage be-

fore the termination of the contract.

The Plaintiff started this action in the United States

Court of Claims for money damages in 1974.

The United States Court of Claims entered its

order dismissing the Plaintiff’s complaint on November

15, 1974.

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(b) Jurisdiction.

The Plaintiff, Yellowstone Pine Company, bases

the original jurisdiction of the United States Court of

Claims on the basis that the United States Forest

Service action was an inverse eminent domain proceed-

ing which took its private property without formal pro-

ceedings.

Yellowstone Pine Company also relies upon the

premises that the United States Forest Service has

created in fact, a wilderness area in the Porcupine-

Buffalo Horn Drainage of the Gallatin National Forest,

which entitles it to compensation under the Wilderness

Act (P.L. 88-577 § 5).

Yellowstone Pine Company renewed its efforts to

obtain access to the Porcupine-Buffalo Horn Drainage,

but was delayed by the U.S. Forest Service. The delay

was caused by the U.S. Forest Service making an Envi-

ronmental Impact Statement on the Porcupine-Buffalo

Horn Drainage. One of the objectives of the Environ-

mental Impact Statement was to study the special use

permit sought by Yellowstone Pine Company.

The draft of the Environmental Impact Statement

was issued by the Forest Service on August 9, 1973, and

the Final Draft was issued on May 13, 1974. The Final

Draft provided that the Porcupine-Buffalo Horn Drain-

age of the Gallatin National Forest was to be maintained

in a roadless state. The entire management prescription

as a whole created a wilderness area since aerial logging

cannot be carried on for a profit in the Gallatin National

Forest. The Environmental Impact Statement in effect

denied the Burlington-Northern, Inc., and the Plaintiff,

Yellowstone Pine Company, of the use of the Burlington-

Northern, Inc., property without just compensation.

ae es

VI REASON FOR ALLOWING

WRIT OF CERTIORARI

Yellowstone Pine Company believes that the United

States Court of Appeals has decided an important ques-

tion of Federal law which has not been, but should be,

settled by the United States Supreme Court.

The Western United States contains land of private

corporations and persons which are co-mingled with the

public domain in areas administered by the United States

Forest Service. Owners of the land locked checker-

boarded land surrounded by public domain have no

recourse to any court in the event an application for a

special use permit to cross forest service land to reach

their own land is denied. The reason for this is that there

is no appeal from a decision of the Forest Service

denying a special use permit.

Land owners of land-locked parcels surrounded by

the public domain are uncertain of what right of access

they have to reach these lands in case the Forest Service

decides that a permit should not be granted because it

would be detrimental of Forest Service values. Loss of

access results in the land becoming valueless.

With the exception of the case of Perko, et. al., v.

United States, 108 F Supp. 315 (D Minn), aff’d 204

F 2d. 446 (8th Cir), cert. denied 346 U.S. 832 (1953),

and the case of Bydlon v. United States, 175 F. Supp.

891 (Ct. Cl. 1959), no decision has been rendered by

the Supreme Court of the United States as to the right

of an owner of land surrounded by public domain to

reach his land by a way of necessity or by statutory

authority. It is necessary in an age becoming oriented

toward the preservation of the environment that the

Supreme Court of the United States considers this

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PENSE IL ELIE ISLE, LES OLS E ELLIE OTIIE ED OES Y ORE IIE NTS NOR aE

question for the benefit of the United States Forest

Service on the one hand and the private ownership

on the other hand. This especially is true in areas

where both the timber manufacturers and the United

States Forest Service need a decision to determine

the right of access of an owner of private land sur-

rounded by the public domain. The exact question that

should be determined by this court is whether a grant

of government land to an individual or to a corporation

which is surrounded by public domain carries with it a

right of way by reason of necessity. The Plaintiff,

Yellowstone Pine Company, has not been able to find

a case in the United States that deals directly with the

question presented by this case. It would be for the best

interest of the parties to this action, and for the nation

if the Supreme Court of the United States would grant

a Writ of Certiorari in this case and determine the issue

presented.

CONCLUSION

For the foregoing reasons this petition for a writ

of certiorari should be granted.

Respectfully submitted,

ANDERSON & DASINGER

oobi f tan

Counsel For Pétiti

oner

24 South Willson Avenue

P.O. Box 607

Bozeman, MT 59715

ae a

sm

renner

ANDERSON & DASINGER

Counsel ‘of Regord

24 South Wi Avenue

P.O. Box 607

Bozeman, MT 59715

Appendix A

IN THE UNITED STATES COURT

OF CLAIMS

No. 144-74

YELLOWSTONE PINE COMPANY

A CORPORATION

Vv.

THE UNITED STATES

[AND OTHERS, INDIVIDUALLY

AND AS OFFICIALS OF THE

UNITED STATES]

Before SKELTON, Judge, Presiding,

NICHOLS and KUNZIG, Judges.

ORDER

This case comes before the court on defendant’s

motion, filed July 1, 1974, to dismiss the petition. Upon

consideration thereof, together with the opposition there-

to, without oral argument, it is concluded that the por-

tion of plaintiff’s claim which names as co-defendants

officers of the United States, individually and in their

official capacities, is beyond the jurisdiction of this

court (see United States v. Sherwood, 312 U.S. 584

(1941) and that the remainder of plaintiff’s case fails

to state upon which relief can be granted (see Mosca v.

United States, 189 Ct. Cl. 283, 417 F. 2d 1382 (1969),

cert. denied, 399 U.S. 911 (1970); Eastport Steamship

Corp. v. United States, 178 Ct. Cl. 599, 372 F. 2d 1002

(1967) ; and the United States Constitution amend. V.

IT IS THEREFORE ORDERED that defendant’s

said motion to dismiss plaintiff’s petition is granted and

the petition is dismissed.

BY THE COURT

BYRON SKELTON

Judge, Presiding

PROOF OF SERVICE

I, MCKENLEY T. ANDERSON, JR., one of the

Attorneys for Yellowstone Pine Company, hereby cer-

tify that on the ./Q.. day of February, 1975, I served

copies of the foregoing petition for Writ of Certiorari

on the parties named hereunder pursuant to Rule 33:

TO: Solicitor General

Department of Justice

Washington, D.C. 20530

Gerold S. Fish

Attorney,

U.S. Department of Justice

Washington, D.C. 20530