United States Court of Appeals, Ninth Circuit.
IDAHO SPORTING CONGRESS, INC.; the Ecology Center, Plaintiffs--Appellants,
David ALEXANDER, Supervisor, Payette National Forest; United States Forest
Service, an agency of the U.S. Department of Agriculture, Defendants--
INTERMOUNTAIN FOREST INDUSTRY ASSOCIATION; Boise Cascade Corporation; Evergreen
Forest Products, Inc., Defendant-Intervenors--Appellees.
D.C. No. CV-99-00217-BLW.
Argued and Submitted April 1, 2002.
Decided Sept. 5, 2002.
Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, District Judge, Presiding.
Before D.W. NELSON, THOMPSON and PAEZ, Circuit Judges.
Plaintiff environmental groups Idaho Sporting Congress, Inc. and the Ecology Center appeal the
district court's disposition of their suit against the United States Forest Service challenging five
timber sales on national forest land in Idaho. They assert that the Forest Service violated the
National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 et seq., and the National
Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., when it approved these five
sales in Payette National Forest. [FN1] The district court dismissed with prejudice counts one,
two and three of plaintiffs' complaint and entered summary judgment in favor of the plaintiffs on
counts four and five, which alleged that the NEPA documentation for all five sales was
insufficient. A permanent injunction was entered barring activities on any of the sales pending new
The plaintiffs raise two claims of error: (1) that the district court erred in dismissing counts one and two with prejudice; and (2) that the district court erred in granting plaintiffs summary judgment on counts four and five without also granting them declaratory relief supporting that judgment.
1. Counts one and two
Counts one and two allege that the Forest Service is failing to monitor and protect certain species
as required by NFMA, and that this failure renders the Forest Service's decision to approve old
growth habitat timber sales arbitrary and capricious. The district court dismissed these counts
with prejudice, holding that they were nonjusticiable forest-wide challenges akin to those rejected
in Ohio Forestry Association v. Sierra Club, 523 U.S. 726, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998).
Because a permanent injunction bars defendants from proceeding with any of the five timber sales
at issue pending further NEPA documentation, we asked the parties to address whether plaintiffs'
appeal of the dismissal of these counts was now moot. A case becomes moot when it "los[es] its
character as a present, live controversy of the kind that must exist if we are to avoid advisory
opinions on abstract propositions of law." Cantrell v. City of Long Beach, 241 F.3d 674, 678 (9th
Cir.2001) (alteration in original) (quoting Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24
L.Ed.2d 214 (1969)).
At oral argument, counsel for the government clarified that considerable amounts of timber had
been logged from two of the five sales at issue before further logging was enjoined. Ten percent
of the timber at Filly Creek and 90 percent of the timber at West Pine Skyline has already been
logged under the challenged sales. Thus, if the Forest Service's approval of these sales violated
NFMA, as plaintiffs allege, any cutting that took place was unlawful and the site-specific injury
about which plaintiffs complain has already occurred.
The case is moot as to these two sales only if no effective relief may be granted to mitigate any
injury from this allegedly unlawful action. See Cantrell, 241 F.3d at 678 (holding that completion
of the action challenged does not moot a case where there can still be "any effective relief" for
alleged harm); Northwest Envtl. Defense Ctr. v. Gordon, 849 F.2d 1241, 1244- 45 (9th Cir.1988).
Plaintiffs are most concerned about any damage that may have been done to animal species, such
as the pileated woodpecker, that rely on old growth habitat. For the same reasons that we held
against mootness in Neighbors of Cuddy, --- F.3d at ----, here we also conclude that effective
relief is still available to mitigate any damage that occurred from past unlawful logging at Filly
Creek or West Pine Skyline, and we decline to hold the case moot simply because the alleged
damage has already occurred. As in Neighbors of Cuddy and Cantrell, here plaintiffs request
broad relief and seek to mitigate possible harm to species that occurred because of allegedly
unlawful destruction of habitat. Such mitigation may be accomplished through any number of
direct species population interventions, if necessary, as well as by other means about which we
need not speculate at this time. Neighbors of Cuddy, --- F.3d at ----; Gordon, 849 F.2d at 1245
n. 6. Counts one and two are therefore not moot as to these two sales.
As to the remaining three sales at issue, no logging occurred at these sites before issuance of the
permanent injunction. Thus, counts one and two are no longer justiciable with respect to these
sales because no injury has occurred or will occur at these sites, given the permanent injunction in
place preventing their implementation absent further review and a new approval. If and when
these sales are approved anew, plaintiffs will then be free to challenge, on any ground supported
by the record, the Forest Service's decision to go forward.
Because counts one and two are not moot with respect to two of the sales at issue, we turn to
their merits and review whether the district court was correct to dismiss them with prejudice. In
considering the complaint on a motion to dismiss, we construe all allegations of material fact in
the light most favorable to the plaintiffs and entertain the complaint unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of its claim that would entitle it to
relief. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 248 (9th Cir.1997). Doing so here, we
find that counts one and two, though they address forest-wide management requirements under
NFMA, are sufficiently tied to plaintiffs' particular challenges to the Filly Creek and West Pine
Skyline sales to be reviewable under the Administrative Procedure Act. Cf. Idaho Sporting Cong.
v. Thomas, 137 F.3d 1146, 1153-54 (9th Cir.1998) (entertaining a challenge to forest monitoring
under NFMA when brought in the context of a challenge to a particular timber sale); Inland
Empire Pub. Lands Council v. United States Forest Serv., 88 F.3d 754, 759-761 (9th Cir.1996)
(entertaining a challenge to the sufficiency of the Forest Service's population viability analysis
under NFMA in the context of a timber sale dispute); Neighbors of Cuddy, --- F.3d at ----. As in
Neighbors of Cuddy, here plaintiffs challenge these specific sales in their complaint and dispute
the Forest Service's decision to go forward with these sales under NFMA. The complaint alleges
that the Forest Service, with respect to the Payette National Forest, "is no longer able to
demonstrate forestwide compliance with its forest plan standard for insuring the viability of old
growth species," and criticizes the Forest Service's approval of Filly Creek and West Pine Skyline
"without further studies of their impacts on old growth species viability." Count One also
specifically charges that the Forest Supervisor's failure to monitor old growth species as required
by NFMA has "rendered any decisions under the LRMP to harvest old growth arbitrary," and
incorporates references to the two sales at issue here. We hold such language sufficient to survive
a motion to dismiss, and remand for the district court to consider whether the Forest Service's
alleged NFMA violations render the Forest Service's approval of the West Pine Skyline or Filly
Creek sale unlawful. See Neighbors of Cuddy, --- F.3d at ---- (describing the parameters of such
We reject the district court's alternative ruling that counts one and two should be struck as
redundant to counts four and five under Federal Rule of Civil Procedure 12(f), as the counts seek
to enforce different duties of the Forest Service--the first two deal with the Forest Service's
substantive duty to ensure species viability throughout the forest, and the latter two with the
Forest Service's procedural duty to evaluate environmental effects.
We also reject defendants' argument that counts one and two are barred by issue preclusion.
Defendants claim that counts one and two raise issues previously litigated in Idaho Sporting
Congress v. Rittenhouse, No. CV 98-0493 (D.Idaho July 27, 1999), aff'd, 2000 U.S.App. LEXIS
17559 (9th Cir.2000), a case in which these plaintiffs challenged different timber sales set to take
place in Boise National Forest. Issue preclusion requires, inter alia, that "the issue necessarily
decided at the previous proceeding is identical to the one which is sought to be relitigated."
Hydranautics v. FilmTec Corp., 204 F.3d 880, 885 (9th Cir.2000). In Rittenhouse, we held only
that the Forest Service did not act arbitrarily in concluding that certain sales in the Boise National
Forest complied with the relevant Forest Plan and NFMA. This holding does not preclude counts
one and two here, which raise the different issue of whether the Forest Service's approval of the
Filly Creek and West Pine Skyline sales was arbitrary given the Forest Service's alleged
noncompliance with NFMA in the Payette National Forest. The two forests, the management of
the two forests, and the effects of the sales may differ in ways that render these timber sale
decisions arbitrary notwithstanding the holding in Rittenhouse.
2. Counts four and five
In counts four and five, the plaintiffs challenge the adequacy of the NEPA documentation
prepared as to each sale. The district court granted summary judgment for plaintiffs on these
counts. Plaintiffs assert that the district court erred in not also granting them declaratory relief
affirming the inadequacy of the NEPA documentation, or otherwise justifying its decision to grant
them summary judgment.
Plaintiffs do not have standing to challenge the district court's judgment in their favor on these
counts. Ordinarily a plaintiff lacks standing to appeal from a favorable judgment because he or she
has not suffered any cognizable injury. See Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326,
333, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980). None of the exceptions recognized in
Environmental Protection Information Center, Inc. v. Pacific Lumber Co., 257 F.3d 1071,
1075-77 (9th Cir.2001), exists in this case. Each party to bear its own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
THOMPSON, J., Concurring in part, dissenting in part.
Because this case is moot as to the Filly Creek and West Pine Skyline timber sales for the reasons stated in my partial dissent in Neighbors of Cuddy v. Alexander, No. 01-35184, --- F.3d ---- (9th Cir.2002) (Thompson, J. dissenting), I dissent from the majority decision and judgment regarding these two timber sales. I concur in the remainder of the decision and judgment.
FN* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
FN1. The sales at issue are the West Pine Skyline, Filly Creek, Rubicon, Fourmile, and North Round Valley sales. This suit challenges different sales from those at issue in Neighbors of Cuddy v. Alexander, --- F.3d ---- (9th Cir.2002), also before this panel, but involves overlapping parties, the same forest, a very similar complaint, and a similar procedural posture. We considered these cases together and our result in Neighbors of Cuddy dictates much of the result here.