ELR Citation: ELR 20848
No(s). 92-35004 (9th Cir. May 4, 1993)

The court holds that §620c(d)(2) and (3)(A) of the Forest Resources Conservation and Shortage Relief Act do not violate the Fifth Amendment's Equal Protection Clause, but do violate the Tenth Amendment because they contain direct commands to Washington State to regulate according to Congress' instructions, and all of §620c must be severed from the Act. The Act, which restricts in varying degrees the export of unprocessed timber harvested from federal and state public lands in the western continental United States, is designed both to conserve timber and to increase the supply of timber to domestic lumber mills. As part of its regulatory scheme, the Act requires states to issue regulations implementing the export bans, including one provision that applied only to Washington due to its timber sales volume. Acting on behalf of Washington State in their capacity as trustees of trust lands, the state Board of Natural Resources and the Board of Education sought a declaratory judgment that the Act and related orders were invalid and unconstitutional under the Fifth Amendment. Counties and a county resident also brought suit claiming violations of the Fifth and Tenth Amendments.

The court first holds that the appellants have standing to challenge the Act on Fifth Amendment equal protection grounds because the Board of Education has standing to raise such a challenge. Based on Third Circuit case law and an implicit conclusion of the U.S. Supreme Court in Washington v. Seattle School District No. 1, 458 U.S. 457 (1982), the school districts, as represented by the Board of Education, are persons under the Fifth Amendment. Using the rational basis test to analyze the appellants' equal protection claim that the Act unconstitutionally distinguishes between public and private lands in its export restrictions, the court holds that the Act passes this test of constitutional validity. Considering any rational purpose possibly motivating Congress' enactment of the Act to determine whether there exists a rational relation to a legitimate governmental interest, the court finds it plausible that Congress may have believed that revenues lost from banning timber export from public lands would be offset by gains in employment and decreased expenditures for social services. Congress believed that the reciprocal nature of the benefits and burdens to the states would not be available through the regulation of private timber land.

Addressing the counties' Tenth Amendment argument, the court holds that the counties satisfy the constitutional minimum standing requirements because they have demonstrated both an immediate economic injury from the operation of the export ban and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury. The court also rules that the arguments raising prudential limitations to the appellants' standing can be deemed waived if not raised in the district court. Applying this ruling to the case, the court holds that it need not decide whether the county resident also has standing to raise the Tenth Amendment claim, because the federal government waived its challenge to the counties' third-party standing, through which they asserted the state's legal interests, by failing to raise this issue in the district court. Next, the court holds that §§620c(d)(2) and (d)(3)(A) and the Secretary of Agriculture's orders under those subsections violate the Tenth Amendment, as interpreted by the U.S. Supreme Court in New York v. United States, 22 ELR 21082 (U.S. 1992), in which the Court held that a provision of the Low-Level Radioactive Waste (LLRW) Policy Amendments Act of 1985 requiring states to take title to and assume liability for LLRW if they fail to create disposal sites or enter into compacts with states that have such sites violates the Tenth Amendment. The Act's provisions are direct commands to the states to regulate according to Congress' instructions, and thus they violate the principle that the federal government may not compel the states to enact or administer a federal regulatory program.

Finally, the court addresses the severability of §620c. The court holds that §620c, as a whole, is severable from the rest of the Act. Section 620c is devoted exclusively to state lands, whereas they remainder of the Act addresses federal lands, establishing restrictions and prohibitions on exporting timber Grown on federal lands. Therefore, the court believes that Congress would have passed the Act even if it regulated only federal land. Although removing §620c from the Act will affect the Act's substantive reach, the state and federal lands which are regulated are so obviously distinct that this factor is not dispositive. The court holds, however, that all of §620c must be severed from the Act. The regulatory scheme contemplated by the section would be altered significantly if Washington were no longer the primary implementor of the export ban. Therefore, the provisions directing Washington State to issue regulations implementing the export ban were not functionally independent of the ban itself, and the section must be severed from the Act.

Counsel for Plaintiffs-Appellants
John W. Hough, Deputy Attorney General
Attorney General's Office
Hwy. Licenses Bldg., P.O. Box 40100, Olympia WA 98504
(206) 753-6220

Daniel B. Ritter
Davis, Wright & Tremaine
2600 Century Sq., 1501 4th Ave., Seattle WA 98101
(206) 622-3150

Counsel for Defendants-Appellees
Jeffrey P. Kehne
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Wallace, J. (before Wright and Leavy, JJ.):