3 ELR 20292 | Environmental Law Reporter | copyright © 1973 | All rights reserved

Sierra Club v. Butz

No. 71-2514 (9th Cir. March 16, 1973)

On the basis of newly discovered evidence, the Ninth Circuit orders the district court to entertain the Sierra Club's motion for a new trial to determine the adequacy of a Forest Service timber cutting plan. The evidence is a report which recommends revision of the cutting plan to protect environmental values. In bears on whether the Forest Service gave sufficient consideration to the various purposes, other than timber, for which the national forests are to be administered under the Multiple Use-Sustained Yield Act. Plaintiffs assert a public concern of substantial dimensions, and the defenses of failure to exhaust administrative remedies and laches do not bar the claim. For lower court opinion see 1 ELR 20161. See also Note 3 ELR 50017.

Counsel for Plaintiffs
Warren A. Matthews
Matthews, Donne & Bailey
429 D St., Suite 201
Anchorage, Alaska 99501

Angus MacBeth
Natural Resources Defense Council
1515 West 44th St.
New York, New York 10036

Counsel for Defendants
G. Kent Edwards U.S. Attorney
Box 680
Anchorage, Alaska 99510

Manley B. Strayer
900 S.W. Fifth Avenue
Suite 2300
Portland, Oregon 97204

Before: MERRILL, DUNIWAY and TRASK, Circuit Judges

[3 ELR 20292]

Merrill, J.

Plaintiffs-appellants have moved this court to remand the cause to the District Court of the District of Alaska to enable the filing of a motion for new trial upon the ground of newly discovered evidence.1

The evidence to which reference is made is a report by A. Starker Leopold and Reginald H. Barrett to U.S. Plywood-Champion Papers, Inc., respecting the manner in which the sales contract should be carried out, with due consideration given to social values other than the economic yield of pulp or lumber. It was the view of this team of experts that "the basic precepts on which the original timber sale contract were based are not today acceptable." It recommended "that the company explore with the Forest Service the possibility of revising the cutting plan to provide more adequate protection for the wide spectrum of ecologic values that is characteristic of Southeastern Alaska." Two alternative cutting plans were proposed, and the report recommended renegotiation of the contract to provide for reduced cutting.

The report thus primarily addresses itself to matters of administrative judgment: whether cutting plans should be modified and the contract renegotiated.

In our judgment, however, it may bear as well on one of the issues presented by this case: whether the contract violated the terms of the Multiple Use-Sustained Yield Act, 16 U.S.C. §§ 528-531 (Supp. 1970).2 This issue was considered by the District Court in its opinion in this case, 325 F. Supp. 99, 122-24 (D.Alas. 1971). The question it discussed was whether the Forest Service had given [3 ELR 20293] "due" consideration to the various purposes (other than timber) for which the national forests are to be administered under the Act.3 The court, at 325 F. Supp. 123 n. 48, discussed what should be regarded as "due" consideration under the Act and concluded that what was intended was that the Forest Service should "apply their expertise to the problem after consideration of all relevant values." It concluded that "some" consideration was sufficient. (For the purposes of this order we accept this interpretation, with the caution that "due consideration" to us requires that the values in question be informedly and rationally taken into balance. The requirement can hardly be satisfied by a showing of knowledge of the Consequences and a decision to ignore them.)

Referring to the proof introduced by the plaintiffs respecting "due consideration," the court stated, at 325 F. Supp. 123-24:

". . . it utterly fails to impeach the record provided by the Forest Service by showing that the administrative decision makers either lacked actual knowledge or failed to consider the myriad reports and studies available to them. The court must presume, therefore, that the Forest Service did give due consideration to the various values specified in the Multiple Use-Sustained Yield Act. Having investigated the framework in which the decision was made, the court is forbidden to go further and substitute its decision in a discretionary matter for that of the Secretary."

In our judgment the report tendered upon this motion may be found to bear upon the stated issues: Whether the Forest Service in truth had knowledge of the ecological consequences of the contract and cutting plan to which it agreed; whether in reaching its decision it failed to consider the available material (the report appends a 10-page list or material cited in the report in existence at the time the contract was entered into); further, a relevant question may be whether consideration was given to alternatives (such as those recommended by the report), which, while giving prime consideration to timber values, would still afford protection to the other values to which due consideration must be given.

The District Court also held the claim of violation of the Multiple Use-Sustained Yield Act barred by failure to exhaust administrative remedies, 325 F. Supp. at 115-17, and laches, id. at 127. The question is now presented whether such defenses can appropriately be employed to exclude consideration of the new material.

Laches involves a balancing of equities. Since plaintiffs are not asserting a private grievance but a public one (see Arlington Coalition of Transportation v. Volpe, 458 F.2d 1323, 1329 (4th Cir. 1972)); since, from the tendered report, the public concern would appear to be of the most substantial dimensions; since plaintiffs have acted promptly in bringing before the court new material which may for the first time provide a sufficient basis for a claim of violation; and since there may be a question whether administrative review of such new material in any event is available, a reexamination by the District Court of its earlier ruling in this respect in light of the tendered new material would seem appropriate.

We conclude that the motion should be granted. We intimate no view as to the manner of disposition of such motion or the extent to which hearing should be granted. We hold only that what is here at stake is of such import as to call for the consideration of the District Court.

Leave is granted to plaintiffs-appellants, within thirty days, to file in the District Court their motion for a new trial upon the ground of newly discovered evidence. The case is remanded to the District Court in order that such motion may be entertained, and with direction in due course to certify to this court its disposition of such motion. The order of this court that the case stand submitted is hereby vacated.

1. Since more than a year has elapsed since rendition of judgment by the District Court, the motion properly is made to this court under 28 U.S.C. § 2106 rather than to the District Court under Rule 60(b), Fed.R.Civ.P.

2. 16 U.S.C. § 528 states that "[I]t is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes . . ."

3. 16 U.S.C. § 529 States that "[I]n the administration of the national forests due consideration shall be given to the relative values of the various resources in particular areas . . ."

3 ELR 20292 | Environmental Law Reporter | copyright © 1973 | All rights reserved