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4 ELR 20371 | Environmental Law Reporter | copyright © 1974 | All rights reserved Sierra Club v. ButzNo. A-16-70 (D. Alaska May 6, 1974)A wildlife report showing that a proposed timber harvest in Alaska would cause serious ecological damage constitutes newly-discovered evidence according to Rule 60(b)(2) of the Federal Rules of Civil Procedure and is grounds for a new trial on whether such harvesting should be allowed, the Federal District Court for the District of Alaska holds. The Ninth Circuit Court of Appeals, in remanding the case, held that the report is relevant and should be considered, thereby resolving the issue of admissibility for the purpose of deciding upon a motion for a new trial. Defendant's assertion that the information contained in the report is not newly-discovered but was instead in the possession of the Forest Service at the time of the original trial and could have been discovered by the plaintiffs is inconsistent with the fact that the report compares the ideas considered by the Forest Service with other literature. The defenses of laches may not be invoked as a bar to the multiple use claim, since the Ninth Circuit held that laches involves a balancing of equities which here entitles the plaintiffs, who are asserting a public grievance of substantial dimensions and have acted promptly in bringing forward new material, to a new trial. The motion for a new trial is granted to determine whether the Forest Service (1) knew of the ecological consequences of the harvesting plan, (2) considered all available material, and (3) considered possible alternatives. Counsel for Plaintiffs Angus MacBeth Bruce Terris James W. Moorman Counsel for Defendants Frederick L. Miller Donald R. Stemp MEMORANDUM AND ORDER This case is presently before the court on plaintiffs' motion for a new trial. This court in its order and memorandum of July 18, 1973, ordered the parties to brief the following questions. "a. Whether the Leopold-Barrett report constitutes newly-discovered evidence; and (b) Whether the defenses of laches and failure to exhaust administrative remedies are a bar to the multiple use claim if the report is found to constitute newly-discovered evidence." Order and memorandum at 9. The court adopted in modified form the standard applied by Rule 60(b)(2), Federal Rules of Civil Procedure, and established the following to determine whether the Report constituted newly-discovered evidence: ". . . whether the report is admissible and credible and whether it could have been discovered by the exercise of diligence . . ." Order and Memorandum at 5. The court did not include in its standard the normal Rule 60(b)(2) requirement that the evidence ". . . be of such a material and controlling nature as will probably change the outcome, [and not be] merely cumulative or tending to impeach or contradict a witness." Plaintiffs concur with the court's standard and assert the Report is admissible and credible and that plaintiffs could not have discovered it by the exercise of diligence. Defendant Champion International, Inc., (Champion) adds to the court's standard the requirements that the evidence not be merely cumulative and that the evidence be in fact newly-discovered. Champion asserts that the evidence is neither admissible nor credible, that it is cumulative, and that it is not in fact newly-discovered evidence. On the latter two arguments, Champion relies primarily upon the response of the Federal defendants. The United States does not press the admissibility issue, nor does it press the credibility issue other than to point out that the scope of the Report transcends the field of expertise of its authors. The Federal defendants concentrate their defense on the contention that the Report does not constitute newly-discovered [4 ELR 20372] evidence. The United States aptly notes the difficulty surrounding this issue given the unusual posture and stage of these proceedings. The court agrees it would be shortsighted to take an overly technical view on the question. The Ninth Circuit's review of the Report removes any issue as to materiality and relevance. The question of hearsay could be resolved with the live testimony of the authors. In any event the court finds the Report admissible conditionally for the purpose of this motion. None of the defendants assails the credibility of the Report in areas of its authors' expertise. The issue is whether pertinent parts of the Report extend beyond the scope of that expertise. The court determines such issues can best be decided at trial, and that the Report is found to be credible for purposes of this motion. For the purpose of this motion, the court finds plaintiffs were diligent in bringing the newevidence before the courts. See also Ninth Circuit's Order of March 16, 1973, slip op. at 3. d. Nature of Newly-discovered Evidence The Federal defendants attack outright the proposition that the Report constitutes newly-discovered evidence. The argument is premised on the requirement that the evidence be in existence at the time of trial; otherwise the evidence is new as opposed to newly-discovered. The defendants argue that all the cited literature and scientific facts upon which the authors relied existed at the time of trial and through diligent efforts the same could have been discovered by plaintiffs. Defendants then present an affidavit which compares the literature used by the Forest Service with that used by the authors to demonstrate that the Forest Service used all the pertinent literature existing at the time of trial. The court is not persuaded that the Report is comprised solely of the literature and scientific facts noted therein. The crux of the Report would be contained in the application of the authors' expertise and their use of the cited literature and scientific facts to the specific ecological problems posed by Champions' prospective logging operation. The basic findings and conclusions of the authors could have existed at the time of trial, and these plaintiffs were unable to expose. The Report memorialized the research, findings and conclusions. More importantly, the court looks beyond the argument itself on this admittedly slippery conceptual problem. The court looks to the evidence in the affidavits presented by the Federal defendants in support of their argument. The "Analysis of References in Leopolid-Barrett Report" compares the literature cited in the Report with the literature and ideas considered by the Forest Service in dealing with the lands involved in the Champion contract. Such comparison constitutes the subject matter of the trial, and not the subject matter of this motion. ". . . The task of this court upon retrial . . . would be to compare the information in the report bearing upon the above questions [set out in the Ninth Circuit Order of March 16, 1973, at 3] with the information considered by the Secretary in reaching his decision. . . ." Order and Memorandum filed July 19, 1973, at 6 and 7. Similarly, assertions in affidavits that the Forest Service has implemented the salient recommendations of the Report are not considered sufficient to deny the motion for a new trial. For the purpose of this order, the court finds the Report to be in the nature of newly-discovered evidence. II. Laches and Exhaustion of Administrative Remedies The argument on these issues centered on the effect of laches upon the newly-discovered evidence. Plaintiffs have a three-pronged argument: (1) balancing the equities, giving substantial weight to those factors underscored by the Ninth Circuit, should tip the scales in plaintiffs' favor, (2) Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1329 (4th Cir. 1972), cert. den. sub nom. Fugate v. Arlington Coalition on Transportation, 409 U.S. 1000 (1972), stands for the proposition that laches cannot be applied to a plaintiff asserting a public claim involving ecology preservation, (3) plaintiff, asserting a public right, is clothed with the government's immunity from laches. Defendant Champion presents the following arguments upholding the application of laches: (1) plaintiffs do not represent the public (2) Arlington does not bar the application of laches solely because the suit concerned the environment, (3) the government itself is not immune from laches, and (4) the newly-discovered Report should not affect this court's decision finding laches as a partial bar to plaintiffs' action. Sierra Club v. Hardin, 325 F. Supp. 99 (1971). The Federal defendants do not address the laches issue. The parties have not briefed sufficiently the administrative-exhaustion issue. The court does not address it other than to note its apparent inapplicability to the suit in its present posture. The court first addresses plaintiffs' arguments captioned (2) and (3) by the court as defendant Champion met these arguments head-on. The court is not persauded Arlington stands for the broad proposition that plaintiffs in ecology suits are immune from laches. The public nature of the grievance litigated constitutes a factor in plaintiffs' favor under Arlington. The Ninth Circuit considered the public grievance as a factor only in balancing the equities. Other courts have done likewise.Clark v. Volpe, 342 F. Supp. 134, 1327 (E.D. La. 1972), aff'd per curiam 461 F.2d 1266 (5th Cir. 1972). Cf. Pennsylvania Environmental Council v. Bartlett, 315 F. Supp. 238, 246 (M.D. Pa. 1970), aff'd 454 F.2d 613 (3d Cir. 1971). Plaintiffs' argument relying upon federal immunity is not persuasive either. First, no authority is given demonstrating a "private attorney general" is treated like the government for these purposes. Second, this Circuit may no longer recognize governmental immunity from the laches doctrine. Cf. United States v. Lazy FC Ranch, 481 F.2d 985, 988, 989 (9th Cir. 1973); 2 Davis, Administrative Law, § 17.03 at 504 et seq. (1958); and Davis, supra, § 1703 at 588 and § 17.09 at 607 (1970). Champion's arguments (1) and (4) are made in the face of the Circuit Court Order.Concerning (1) that Court emphasized the nature of the grievance; the issue is not framed as whom plaintiffs represent. Concerning (4) the Circuit Court considered the Report of sufficient import to invoke special appellate procedures to reopen the case and to remand it to this court. The Circuit Court addressed the laches issue as follows in its Order remanding this case: "Laches involves a balancing of equities. [1] 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); [2] since, from the tendered report, the public concern would appear to be of the most substantial dimensions; [3] since plaintiffs have [a] acted promptly in bringing before the court new material which may for the first time provide a [b] sufficient basis for a claim of violation; and [4] since there may be a question whether administrative review of such new material in any event is available, a re-examination by the District Court of its earlier ruling in this respect in light of the tendered new material would seem appropriate." Slip Op. at 3. Pursuant to the above, this court conditionally reverses its findings on the issue of laches for the purpose of comparing the information in the Report with the information considered by the Secretary. Accordingly, it is ORDERED as follows: 1. Plaintiffs' motion for a new trial is granted. 2. Plaintiffs will have the burden of proof. 3. The scope of the trial will be limited to the following issues: a. The Forest Service did not in truth have knowledge of the ecological consequences of the contract and cutting plan to which it agreed; b. In reaching its decision the Forest Service failed to consider the available material (the report appends a 10-page list of material cited in the report in existence at the time the contract was entered into); c. The Forest Service failed to give consideration 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. See Sierra Club v. Butz, Slip Op. at 3 (9th Cir. March 16, 1973). 4. The new trial on the grounds of newly-discovered evidence is hereby set at the hour of 10:00 a.m. on Monday, August 12, 1974, [4 ELR 20373] at Anchorage, Alaska. 5. All necessary discovery shall be completed on or before July 12, 1974. 6. If all parties agree to the appointment of a special master, and so stipulate in writing on or before May 31, 1974, the court will consider such an appointment pursuant to Rule 53, Federal Rules of Civil Procedure. 7. On or before May 31, 1974, each party shall show cause, if any there be, in writing, why an independent, impartial expert or experts should not be selected and appointed by the court pursuant to Court Rule 19. a. The court will consider the appointment of an expert or experts agreed upon by the parties in writing. b. The parties are requested to submit the names of independent, impartial experts for consideration by the court. Each name shall be accompanied by a current resume of the background and qualification of the expert. c. The parties are also requested to submit the names and addresses of persons, firms, agencies, institutions or other entities that may be contacted by the court to obtain information regarding available independent, impartial experts in the fields of silviculture and the ecological consequences related to the harvesting of timber. d. Expert witnesses so appointed will be entitled to reasonable compensation to be determined by the judge. Such compensation shall initially be paid in such proportions and at such times as the judge directs, and thereafter charged in like manner as other costs. 8. Unless otherwise ordered upon motion and a written showing of good cause, the witnesses that may be called on the new trial are: Independent, impartial expert or experts appointed by the court or pursuant to stipulation of counsel. 4 ELR 20371 | Environmental Law Reporter | copyright © 1974 | All rights reserved |