U.S. Court of Appeals for the D.C. Circuit, 1976

Duke City Lumber Company v. Earl Butz, Secretary of Agriculture

U.S. Court of Appeals for the D.C. Circuit · Decided July 6, 1976 · Clark, Robinson, MacKinnon

539 F.2d 220; 176 U.S. App. D.C. 218; 6 Envtl. L. Rep. (Envtl. Law Inst.) 20629; 1976 U.S. App. LEXIS 8174 (Federal Reporter, Second Series)

Counsel

Pierre J. LaForee, Washington, D. C., with whom Angelo A. Iadarola and Jerry R. Goldstein, Washington, D. C., were on the brief, for appellants., Richard A. Graham, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Paul M. Tschirhart, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellees., H. Robert Halper, Washington, D. C., with whom Terence P. Boyle, Mark P. Schlefer, Michael Joseph and William H. Fort, Washington, D. C., were on the brief, for appellee/intervenor Bennett Lumber Products Inc., and others and Alsea Lumber Co., and others.

Cases that cite this one

40 later published cases cite this decision. The 23 that cite it most often are listed here.

Blue Cross Ass'n v. Califano (District Court, W.D. Missouri 1979)
Ramsey Clark v. Francis R. Valeo, Secretary of the United States Senate (D.C. Cir. 1977)
Dkt Memorial Fund Ltd. v. Agency for International Development, Dkt Memorial Fund Ltd. v. Agency for International Development (D.C. Cir. 1989)
Johnson v. Sikes (11th Cir. 1984)
Johnson v. Sikes (11th Cir. 1984)
Louisiana-Pacific Corporation v. John R. Block, Secretary of Agriculture (9th Cir. 1982)
In re Grand Jury, April, 1979. United States of America, and Cross-Appellee v. Warren Gotcher and John Glenn Peters, and Cross-Appellants (10th Cir. 1979)
New York Guardian Mortgagee Corp. v. Cleland (District Court, S.D. New York 1979)
Wilderness Public Rights Fund v. Kleppe (9th Cir. 1979)
City of Santa Clara v. Andrus (9th Cir. 1978)
Mobil Oil Corp. v. Federal Trade Commission (District Court, S.D. New York 1977)
Realty Income Trust v. Eckerd (D.C. Cir. 1977)
Save Long Beach Island v. United States Department of the Interior (District Court, District of Columbia 2023)
Biloxi Marsh Lands Corporation v. United States (United States Court of Federal Claims 2021)
Akbar v. Cissna (District Court, District of Columbia 2020)
Conference of State Bank Supervisors v. Office of the Comptroller of the Currency (District Court, District of Columbia 2018)
Conference of State Bank Supervisors v. Office of the Comptroller of the Currency (D.C. Cir. 2018)
Matthew A. Goldstein, Pllc v. United States Department of State (District Court, District of Columbia 2016)
Perry Capital LLC v. Lew (District Court, District of Columbia 2014)
Exxon Mobil Corp. v. FEDERAL ENERGY REGULATORY COMMISSION (D.C. Cir. 2007)
Jubilee Housing, Inc. v. District of Columbia Water & Sewer Authority (D.C. 2001)
Johnson v. Greater Southeast Community Hospital Corp. (District Court, District of Columbia 1995)
Daingerfield Island Protective Society v. Babbitt (District Court, District of Columbia 1993)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

PER CURIAM:

This suit, now pending for over three years, attacks the validity of the 1971 changes in the small business timber set-aside program as established by the Memorandum of Understanding between the Small Business Administration and the United States Department of Agriculture. The appellants are twelve forest product manufacturing companies that are not eligible for set-aside sales under the program because they exceed the fixed standard of 500 employees or less in measuring the eligibility of a business to participate. 13 *221 C.F.R. 121.3-9(b). They assert that a new triggering mechanism for the program is arbitrary and capricious, is beyond the statutory authority of the agencies, and violates their due process rights as well as national forest administration statutes, the National Environmental Protection Act, and other federal laws.

We have made a detailed study of the voluminous records in the case, including numerous exhibits, briefs, and depositions as well as the opinion of the District Court, 382 F.Supp. 362 (D.D.C. 1974). The district judge has written an able opinion in which he deals with each of the appellants’ contentions at length. We have concluded that nothing would be gained by our writing extensively on the matter. We, therefore, adopt the opinion of the District Court, save in one respect.

The District Court carefully considered the Government’s attack upon the jurisdiction to hear appellants’ claim. We do not disagree with the District Court’s determination that appellants meet the tests for standing announced by this circuit in Ballerina Pen Company v. Kunzig, 140 U.S.App.D.C. 98, 433 F.2d 1204 (1970), cert. denied, 401 U.S. 950, 91 S.Ct. 1186, 28 L.Ed.2d 234 (1971), and believe that the District Court intended that its comments and findings on standing be considered as also relevant to the question of ripeness. A careful review of the Abbott Laboratories trilogy, 1 convinces us that, for the most part, appellants’ challenge to the 1971 guidelines was ripe for review. 2 We are not convinced, however, that this is the appropriate case to review that part of the guidelines that would prevent the “historical share” figure from being revised below 50% of the original base period figure. Admittedly, that portion of the guidelines could hold the most mischief for appellants, but they have neither proved its probability nor demonstrated adequately that it is any more than an abstract possibility at this time. None of the briefs address the question to our satisfaction nor could they, given the present state of the record. Accordingly, we decline to pass on the question, reserve it for some later time when it is ripe for review, and revise so much of the District Court’s opinion that may be construed as dealing with the question of the 50% preservation minimum.

It is so ordered.

. Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Gardner v. Toilet Goods Ass’n, 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967), and Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967).

. The question of ripeness goes to our subject matter jurisdiction, and thus we can raise the issue sua sponte at any time. Mansfield, Coldwater & Lake Michigan Ry. v. Swan, 111 U.S. 379, 384, 4 S.Ct. 510, 28 L.Ed. 462 (1884).

Case-law data current through December 31, 2025. Source: CourtListener bulk data.