Sierra Club v. Butz

No. 71-2514 (9th Cir. March 23, 1976)

The Ninth Circuit remands this challenge to a Forest Service timber sale, in which a motion for a new trial is currently pending, to the federal district court in Alaska for the purpose of considering plaintiffs' more recent motion for rehearing or, in the alternative, summary reversal. The latter motion is based on the Fourth Circuit's ruling in West Virginia Division of the Izaak Walton League v. Butz, 5 ELR 20572, that the Organic Act of 1897 bans clearcutting in the national forests.

A dissent argues that the district court should first be allowed to rule on the motion for a new trial; if the motion is denied, plaintiffs could then raise their Organic Act claims in the context of an appeal from that denial, otherwise the contentions could be presented at trial.

For the court's decision to remand the motion for a new trial, see 3 ELR 20292. The district court's initial decision upholding the validity of the timber sale appeared at 1 ELR 20161.

Counsel for Plaintiffs-Appellants
Warren W. Matthews
Matthews, Donne & Bailey
429 D Street, Suite 201
Anchorage AK 99501
(907) 272-2491

Counsel for Defendants-Appellees
G. Kent Edwards, U.S. Attorney
P.O. Box 680
Anchorage AK 99510
(907) 277-1491

Manley B. Strayer
Davies, Biggs, Strayer, Stoel & Boley
900 S.W. Fifth Avenue
Portland OR 97204
(502) 224-3380

Duniway & Merrill, JJ.; Trask, J. dissents with separate opinion.

[6 ELR 20369]

Per curiam:

ORDER REMANDING CASE FOR LIMITED PURPOSE

After due consideration, it is ORDERED that the above entitled case is hereby remanded to the United States District Court for the District of Alaska for the limited purpose of considering plaintiffs'-appellants' Motion for Rehearing or, in the Alternative, for Summary Reversal.

[6 ELR 20369]

TRASK, Circuit Judge, Dissenting from the granting of the motion to remand for a limited purpose:

This case has as its core issue the validity under the Organic Act of 1897, 16 U.S.C. §§ 475-482, and the Multiple Use-Sustained Yield Act, 16 U.S.C. §§ 528-531, of a contract for the sale of timber by the United States, through the Forest Service of the Department of Agriculture, to United States Plywood-Champion Papers, Inc. An issue collateral to that above stated but of great importance to it involved the action of the seller in making a mill site available to the buyer. All issues were presented to the district court and were resolved against the plaintiffs-appellants, Sierra Club, which had challenged the action of the Department of Agriculture.

An appeal was taken to this court on September 30, 1971, and the matter argued and submitted on September 7, 1972. On March 16, 1973, before an opinion was filed, plaintiffs-appellants 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."

That newly discovered evidence was a report by A. Starker Leopold and Reginald H. Barrett to United States Plywood-Champion Papers, Inc. The report concerned:

. . . 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. (Order of Court of Appeals, 9th Cir., filed Mar. 16, 1973, at 1.)

We believed, and so stated, that the report might also bear upon the basic purposes of the Multiple Use-Sustained Yield Act, supra. Carefully stating that we intimated no view as to how the motion for new trial should be decided, we issued the order of remand and vacated our order of submission. Proceedings on the consideration of the motion for new trial in the light of the Leopold-Barrett report were held in the district court beginning September 24, 1974, but the motion has not yet been decided.

On December 11, 1975, plaintiffs-appellants filed a "Motion for Rehearing or, In the Alternative, for Summary Reversal." The motion was stated to be predicated upon "a development of fundamental importance." That development was a decision from the court of appeals of the Fourth Circuit¹ interpreting the provisions of the Organic Act of 1897, supra, as to the marking of timber to be cut, differently than the district court had done in its opinion of March 25, 1971. Recognizing that the limited remand by this court to consider the Leopold-Barrett report could not possibly be stretched to encompass a review of a court of appeals decision in another circuit, the plaintiffs-appellants motion requests that the district court grant a "full rehearing on their claim under the National Forest Organic Act of 1897." The district judge has relayed the motion to this court.

The district court properly interpreted our remand to determine whether a new trial would be warranted in light of the Leopold-Barrett report. This court has retained jurisdiction of the case presented to it on appeal on September 7, 1972, save for the narrow question for which remand was granted. Therefore, it appears to me that the orderly procedure would be for the district court to rule on the motion for a new trial based upon the Leopold-Barrett report. If the motion be denied, plaintiffs appellants would still be in a position to supplement their argument on appeal by a submission of new and additional authorities in accordance with the practice of this court. Those authorities would then be considered in the light of the existing record without the necessity of a completely new appeal by a possibly different appellant.

This case was decided by the district court on March 25, 1971, 325 F. Supp. 99. If an appealing litigant were entitled to ask the appellate court for a remand to the district court to consider the impact of every favorable new decision published by a different circuit, the course of litigation would become never-ending. I would deny the motion.

1. West Virginia Division, Izaak Walton League, Inc. v. Butz, 522 F.2d 945, [5 ELR 20573] (4th Cir. 1975).