Headwaters Inc., an Oregon Non-Profit Corporation Forest Conservation Council v. U.S. Forest Service

HUG, Circuit Judge: This case presents problem peculiar to public law cases. The in this case suing are vindicate a right already that has been litigated by other groups. environmental The con- validity test the of sales of by timber made the Forest Service. particular Those sales, however, have already been chal- lenged other by groups environmental us- ing arguments the same that the present. now agree We with the district court that the current plaintiffs interests virtually represented by previous groups, so we affirm the district court’s dismissal of the case on res grounds.

Headwaters, Inc. and the Forest Con servation Council (collectively “Headwa ters”) filed suit the United States seeking Forest declaratory Service in- and junctive alleged relief for violations of the National Policy Environmental Act (“NEPA”), 4321-4370, §§ 42 U.S.C. National Forest Management Act (“NFMA”), 1600-1687, §§ 16 U.S.C. and the Administrative Procedures Acts Williams, Lori Cooper, OR, J. for the (“APA”), §§ 5 U.S.C. 701-706 in the appellants. Rogue River National Forest. The dis Aagaard, Todd S. Attorney, United trict complaint court dismissed the as Department Justice, States Washington, judicata. Headwaters v. by barred D.C., appellees. for the Service, United States Forest (D.Or.2001).

F.Supp.2d We jurisdiction have based upon U.S.C. § and affirm. Background

I. On May six environmental GOODWIN, HUG, Before: (“American and groups two and individuals1 BERZON, Judges. Circuit Lands litigants”) filed suit against the For- challenging

est Service timber various HUG; Opinion by sales, Judge Dissent including the Beaver-Newt and Sil- Judge BERZON. ver Fork Timber Sales. American Lands Guardians, The named included: American tershed Friends of Breitenbush Alliance, League Cascades, of Wilderness Defend- Wildlands Cen- ers, Federation, Oregon ter, Gregory Dyson, Wildlife Santiam Wa- J. and John Rancher. com- virtually identical Williams, plaint No. 99-697-AA

ZAlliance Klamath-Siskiyou, filed alleged plaint (D.Or.1999). complaint The by the same represented of the sales Headwaters approval Service’s the Forest Klamath-Siski- NFMA, that represented the APA. NEPA, counsel violated complaint prior litigation. Fork you Silver Both the Beaver-Newt NFMA, NEPA, Rogue alleges River violations again within are located areas Beaver- Oregon. APA a result in southwestern Forest National On Fork Sales. Timber and Silver Newt pursuant December On sponte sua Judge Hogan July agreement, settlement preju- complaint the new dismissed of dis- stipulation signed a Lands litigants Headwa- judicata res grounds. dice on prej- complaint with amended missal ters, at 1258. Headwaters F.Supp.2d 159 19, 2000, District January udice. On appeals. judgment dis- Aiken entered Judge Ann missing prejudice. the action with Review II. Standard 21, 2001, the Klamath- February On judgment court’s based A district (“Klamath-Sis- Center Siskiyou Wildlands question judicata is mixed upon res Forest Ser- against the filed suit kiyou”) predomi legal and fact issues law which Bea- that the alleging approval vice Gregory v. novo. de and is reviewed nate Fork Timber Sales and Silver ver-Newt (9th Widnall, 1071, Cir. 153 F.3d NFMA, APA. NEPA, and the violated Corp., Geophysical v. 1998); United States v. Center Klamath-Siskiyou Wildlands Cir.1984). (9th 693, “[I]f F.2d Service, 01- Forest No. United States previously it has is on notice court (D.Or.2001). Forest Service The 3018-HO may court presented, the decided the issue pleadings on the judgment for moved sponte, even though the action sua dismiss judicata because Klamath- upon res based Arizona has not been raised.” the defense plaintiff a named Siskiyou been had 412, California, response, In on suit. American (2000) (quotation L.Ed.2d Klamath-Siskiyou filed a mo- 1, 2001, June omitted). “This result and citation marks judgment which from the tion for relief policies under with the fully consistent judicata would bar res conceded that solely on judicata: it is not based lying lawsuit, the court argued that should avoiding interest the defendant’s the American Lands grant relief defending a [or thrice] of twice burdens Rule Civ- to Federal judgment pursuant the avoidance of on suit, but is also based 60(b) 60(b). Rule motion il Procedure (citation Id. unnecessary judicial waste.” allegation upon the was based omitted). Lands suit did the attorney into the authority to enter settle- not have III. Discussion July Judge On agreement.

ment the Forest Ser- Hogan granted Michael res judicata pro “The doctrine plead- judgment on the vice’s motion the merits judgment on final vides prej- without action ings and dismissed or their by parties further claims bars appeal Klamath-Siskiyou did udice. of action.” cause based on the same privies judgment. (9th Schimmels, 127 F.3d In re Cir.1997) (internal marks omit quotation later, July days Three ted). doctrine is of this application “The present suit filed Headwaters civil which purpose for com- central Headwaters’ Service. the Forest established, courts have been the conclu Costantini v. Airlines, Trans World disputes ju sive resolution of within Cir.1982) (internal their 1201-02 omitted). risdiction.” Id. The citations doctrine encompasses a vindication of rights Headwaters’ suit clearly contains by “avoiding pre inconsistent results and identity an of claims with the American serving judicial economy.” Clements v. Lands and the Klamath-Siskiyou suits. Auth., Airport Cir. complaint Headwaters’ alleges infringe an 1995). ment of the right same out of arises the same nucleus of facts that pres necessary The elements to estab ent both the American Lands and Kla- “(1) lish res identity are: of mathr-Siskiyou litigation. Headwaters’ (2) claims, merits, final on the complaint challenges the timber sales on (3) privity between parties.” Tahoe- grounds that the Forest Service is Sierra, (quotation 322 F.3d at 1077 marks NEPA, NFMA, violations of and the APA. omitted); and citation Western Radio All three of these claims were Glickman, Servs. Co. v. the prior Further, suits.2 the Beaver- (9th Cir.1997). We examine each of Newt and Silver Fork timber sales are the these elements turn. underlying of “nucleus facts” that forms

the basis for all three of these suits. Fi nally, if this court were to rule on the Identity A. of Claims claims that are presented it would have an In determining whether the pres prior effect on the judgment in the Ameri ent dispute contains an identity of claims can litigation. Lands with the litigation, the Ninth Circuit Because the complaint alleges the same considers: causes of action stemming from the same (1) [Wjhether rights facts, or interests of estab- nucleus we hold that there exists lished in prior judgment identity the of be claims. would destroyed or impaired by prosecution of Judgment B. Final on the Merits (2) action;

the second whether substan- tially the same presented evidence is The of an dismissal action with (3) actions; the two whether the two prejudice a final judgment constitutes on suits infringement involve of the same the merits and precludes a party from (4) right; and whether the two suits reasserting the same claims in a subse arise out of the same transactional nu- quent action. International Op Union of cleus of The facts. last of these Karr, criteria Engineers erating v. F.2d is important. 1429(9th the most Cir.1993); see Lawrence v. Stein- groups Each of six raise, the gave environmental the of standing the forest that them to American Lands and the two envi- public, on behalf of the the contention that groups filing ronmental the Headwaters com- these three laws had been violated. plaint pursued these three claims on behalf Headwaters, Inc., fact the public prevent the to timber the for sales expressed Forest Conservation Council the expressed violation these laws. All of them standing basis for their in slightly different standing their to assert this for interest claims, ways give separate did not them essentially enjoyment same reason: Judge suggests. only these Berzon’s forest areas dissent It af- their members. This standing expressed standing somewhat forded each to different assert a claim on language, particular all involved their public. use behalf are ac- first suit Dominelli), parties (In which re Holding B.V. ford a sub- who file non-parties Cir.1987) (dismissal to countable (9th 313, 316-17 F.2d identical issues.” suit with sequent to a set- pursuant prejudice of action judg- final constitutes agreement tlement Schimmels, 127 re In (quoting at 1082 Id. parties precludes merits on the ment 881). F.3d in a sub- claims same reasserting the longer bound are no “Courts action). sequent privies or their parties rigid definitions court The district es- collateral applying purposes judgment final entered States United judicata.” or res toppel action with it dismissed when merits Inc., F.2d Rayonier, ITT dis stipulated pursuant prejudice Cir.1980). However, non- because dis stipulated upon Based missal. exception to “an party KlamatL-Siskiyou dis missal, the court every historic tradition deep-rooted because hold that We the case. missed court, day in his own have one should prejudice, of the action with the dismissal relationship ensure that courts must mer on the a final exists there original suit party between its. precluded sought to be justify sufficiently close later suit Privity C. Schoemehl, Tyus v. preclusion.” depen concept, flexible Privity is a (internal Cir.1996) quotation relationship between particular on the dent omitted). marks citations Ta cases. set of in each individual Federal exists hoe-Sierra, parties at 1081-82. “Privity F.3d between relationships in interest several is so party have deemed when a identified courts of finding a that he justify to “sufficiently close” to former party with a therefore, and, right under in re preclusion same precisely the “privity” represents subject matter judicata: involved.” of res to the spect the doctrine L.L.C. v. Grand Litigation Stratosphere “First, succeeded non-party who has a (9th Casinos, Inc., 1142 n. 3 298 F.3d is bound property interest party’s to a Schimmels, Cir.2002) In re (quoting party. judgment against any prior by 881). are parties “Even at when the F.3d Second, who controlled non-party a if is identical, may exist there privity the result- by will be bound suit original parties, identity between Third, will substantial courts federal judgment. ing commonality of interest.” is, a sufficient were non-party whose interests a bind 1081(internal Tahoe-Sierra, at 322 F.3d in the by party adequately represented omitted); citations marks and addition, quotation has “privity” In suit.” original Gottheiner, F.2d In re see “substantial there found where been Hahn, Cir.1983); F.3d (9th Shaw nonpar- and party identity” between Cir.1995) (privity found 1128, 1131-32 signifi- nonparty “had ty, where in the party the interests pri- when in the participated interest and cant and shared with action were subsequent action,” the interests where and or party represented closely adequately “so party are nonparty Inc., 627 action); Rayonier, ITT former virtually representa- be as to aligned may inter exist when 1003(privity at relationship privity Finally, a tive.” authority by one with represented are is an ests there exist when said to can be so). to do relationship by legal implied or “express case, privity

In this exists be ence between the being documents litigants tween Headwaters with the in names of the litigants. finding A privity both the is not appropriate simply because the same litigation. attorney stated interests of represented parties litigants are not simply “closely aligned;” subsequent proceedings, South Central they sought Alabama, are the same. The relief Telephone is Bell Co. v. 526 U.S. parties also identical. The have not 143 L.Ed.2d 258 sought recognition any peculiar (1999), but, interest here, when as a tactical deci- to themselves but rather vindication of sion is made to manipulate the court’s public right Forest Service require decision and preclusive avoid the effect of compliance with NEPA and NFMA. a prior judgment, privity can be properly Richards v. County, Tahoe-Sierra, found. See 1081; 322 F.3d at Jefferson Tyus, 135 L.Ed.2d 76 93 F.3d at 455. (1996) (concerns regarding ap the broad Knowingly refiling a decided action un- plication are lessened when der another only name not wastes the suit at upon issue claims based raises judicial scarce resources but also shows public law than private rights). rather In disrespect corrosive finality context, law the number of decision. otherwise, Were we to hold potentially standing limit groups would be free attack a judgment Angeles less. See Los Branch NAACP v. ad arranging for successive infinitum Dist., Angeles Los Sch. 750 F.2d Unified actions leaving the ability Forest Service’s Cir.1984) (en banc) (litigants regulate the National perpet- Forests precluded from challenging segrega ually Tahoe-Sierra, in flux. 322 F.3d at in public tion schools because the matter Alpert’s see Newspaper Delivery already had been litigated in the state Co., Inc. v. New York Times courts). judicial economy Concerns of (2d Cir.1989)(finding privity even when defendants, cost to every while the association party, itself a suit, particularly are important in these provided substantial “tactical and financial Tyus, cases. actions). help” in both Fur- ther, ability the groups to continually A attempt by deliberate liti bring upon successive suits based the same gants to evade prior judgment the of the facts, cause action and nucleus of calls court is a factor to be considered in the question into the ability Federal courts’ analysis. Tahoe-Sierra, privity See ever to settle a upon public case based law. F.3d at see also Tice v. American Airlines, (7th Cir.1998) Judge Berzon contends her dissent (privity can be found when there exists that stare decisis is protection all the deliberate to avoid the maneuvering effects that the Forest needs Service re- judgment). days Three after peat litigation because once a decision has complaint Klamath-Siskiyou, which a been by rendered this court it would bind named in the American Lands liti panels future of this court and the district gation, dismissed, filed was Although Headwaters court. agree we that the doc- a virtually filed complaint identical trine of stare prevent decisis incon- would much of the language taken verbatim. sistent results in litigation successive attorney, Headwaters’ issue, who also was the the same behind purpose attorney for Klamath-Siskiyou, principle judicata filed the of res is that the Forest complaint with appreciable the only differ- Service should not to have succes- to method Siskiyou action. proper The it has after issue on the same claims sive Schimmels, the challenged 127 have once.

been resolved 60(b) a Rule to have filed judgment the burden of much It is as F.3d at 881. Klamath-Siskiyou ease. inconsis- in that motion as the risk repeated rendered challenge judgment this resolving justifies did that tent results by a either See Clem- brought, action it grounds. the second judicata res case on 60(b) Instead appeal. an ents, motion or at 330. Klamath-Siskiyou filed a vir- attorney for advances dissent Judge Berzon’s later, days sub- three suit tually identical Forest for the in order theory that novel plaintiff. named stituting a different litiga- repeat successive to avoid Service easily judicata is not so of res doctrine interest, it must of the same tion avoided. brought litigation, which was treat the a class action, it were through as as a class 23(c). knowWe under Fed.R.Civ.P. action Conclusion IV. proposition. a authority for such noof complaint was hold that Headwaters’ We fairly apply properly courts Reviewing because correctly barred dismissals on sponte scrutiny to sua strict dispute, present there exists Ordinarily, the judicata. of res basis claims, on the final identity of provide likely system is adversarial Headwaters privity between merits resolving such basis dependable more Ameri- litigants both and the identity of issues privity and questions as litiga- can Lands are not We of this kind. involved cases Therefore, deci- court’s the district tion. However, in concerns. these unmindful of is affirmed. sion imagine a suc- case, is difficult it be mounted that could argument cessful AFFIRMED. lengthy hear- briefing and

upon exhaustive issues and legitimate ings to show dissenting: BERZON, Judge, District be more litigants could interests of “ litiga- by protracted accurately determined ‘deep-rooted this nation have in We judicial Indeed, both in terms tion. everyone should historic tradition ” client re- husbanding of economy and court,’ day presume, his own have “ hiring more sources, appear it would judgment or de- consequently, ‘[a] argument more attorneys resolves to a among parties lawsuit cree waste of spectacular would be this case them, it does not among issues resources. those strangers to rights of conclude the ” v. Richards proceedings.’ af- protections the regarding Jefferson Concerns 1761, 798, County, 517 U.S. 116 S.Ct. law the litigants in potential forded (1996) (citations omitted; 76 135 L.Ed.2d The district easily appeased. are areas de- Yet, the court original). in the alteration admonishing right in was quite court organi- environmental today two to attack cides that proper the method litigants that litigated the validi- never zations who have was direct- Lands judgment the American precluded sales are timber refiling ty of several the collaterally through ly and not for other Headwaters, doing so because counsel from F.Supp.2d at of this suit. earlier, signed a dis- year organizations, chal- sought to chal- similar of a prejudice missal with by judgment the lenge 60(b) lenge. the Klamath- motion in filing a Rule although

The court so decides the record To conclude that present the plaintiffs (1) entirely any relationship by silent as to: are bound an unlitigated judgment, en by organizations tered organizations entirely between the the earlier indepen dent of except them for a organizations lawyer, suit and the the common mem —or is simply unprecedented. While there organizations plain bers of the are are —who circumstances, (2) limited one; “privi denominated tiffs the reason for the ty” or, sometimes, representation,” “virtual prejudice, earlier dismissal with including in which one individual or entity can be original plaintiffs whether the had stand by bound litigation another, by conducted ing they sought the case those circumstances have never included (3) bring; whether plaintiffs the in the circumstances which litigation all, earlier suit obtained any relief at al parties who have no relationship with each (4) though appears not; it they did other, and there was no attempt whether plaintiffs, or their original litigation to assure any fairness to members, knew the earlier suit it while potentially affected parties, third ongoing was or any had involvement in litigation there was no on the merits it, prosecuting although there is no indica Mascott, first suit. See Irwin v. (5) did; they tion that whether the Cir.2004) (summarizing the filing of the second in any respect suit was limited circumstances which this court instigated by any recognizes representation). virtual Under suit, original although majority ap circumstances, such pro neither the due assume, pears to with no basis in the rec underpinnings cess modern res ord, that it It although was. so decides we law, Alabama, see S. Cent. Bell Tel. Co. v. (1) do know that the earlier case 160, 168, 526 U.S. 119 S.Ct. brought as a class action under Rule 23 of (1999); Richards, L.Ed.2d 258 U.S. (2) Procedure; the Federal Rules of Civil 797 & n. 116 S.Ct. Blonder- that the district court in the earlier case Labs., Found., Tongue Inc. v. Univ. Ill. provide therefore did not any safeguards 313, 329, 402 U.S. 91 S.Ct. to assure that all parties potentially affect (1971), L.Ed.2d 788 nor the purposes of ed fairly represent judicial economy prevention of vexa ed, as would be the case were certification tious underlie 23(a)(4); of a sought, class see Fed.R.Civ.P. law, 90, 94, McCurry, see Allen v. 449 U.S. Prods., Windsor, Amchem Inc. v. (1980), L.Ed.2d 308 are 138 L.Ed.2d 689 served. (1997); Honig, Crawford Instead, majority’s under the analysis, (3) Cir.1994); there is no government litigating here avoids ever indication that the original the propriety ques- of the timber sales in thought they suit were representing any tion, because organi- some environmental themselves; (4) one other than zations, reasons, for unknown decided to the district court in prior litigation did time, away walk At court. the same approve stipulation of dismissal as will never have a chance to affected, fair to those as would have been obtain a court determination of their con- the case proceeded had the suit a class tention that government’s the timber sales action, 23(e); see Ayers Fed.R.Civ.P. policy illegal. Thompson, Cir. 2004); In Mego Corp. Litig., re Fin. Sec. Denominating concerning this case one (9th Cir.2000). “public law” does not alter these concerns in the case any developments under Before inquiry case from

or insulate scheduling order filing the of In from apart federal standards. ordinary preclusion complaint before, allege personal and an amended court, must every litigant — and, as see standing, far is, on the any establish in fact injury merits — II), (Lujan any shows, receiving record without Lujan v. as the Wildlife of Defenders defendants, the the concessions (1992), nec- every litigation to a Lands stipulated so plaintiffs L.Ed.2d 351 American vindicate, degree, to some prejudice essarily seeks with complaint of their dismissal rights. rather than private filing suit. District after months seven on Janu- the dismissal Judge Aiken issued closes majority’s decision the Because Lands com- American ary door contravention courthouse action, a class not denominated plaint modern notions of expansive the most even Judge Ai- is no indication and there law, respectfully dissent. I stipulation the fairness

ken reviewed Background I. parties. third as it affected majority’s account briefly amplify the I 21, 2001, later, February one yearA litigation: history of this of the in American plaintiffs organizational com- amended The October Lands, Klamath-Siskiyou Wildlands Alliance v. American Lands plaint (“Wildlands Center”), filed new Center (D.Or.1999), Williams, No. 99-697-AA nineteen regarding two complaint environmental by six self-described filed sales, declaratory and in- seeking timber individuals, ad- two organizations and and NEPA. relief under junctive NFMA for relief under nine claims vanced Ctr. v. Klamath-Siskiyou U.S. Wildlands Act Management Forest National (D.Or. Serv., No. 01-3018-HO Feb. Forest 1600-1687, Na- (NFMA), §§ 16 U.S.C. 2001). sought The Forest dis- Service (NEPA), Policy Act tional Environmental judicata” “res the new suit on missal of 4321-4370, and the Adminis- §§ 42 U.S.C. partic- based on the grounds, (APA), 5 U.S.C. Act trative Procedures in American Lands. The Wild- ipation 701-706, nineteen United challenging §§ from the relief sought Center then lands logging programs Forest States Service Lands under Fed- of American dismissal Hood, River, Willamette, Rogue Mt. 60(b). Procedure Dis- eral Rule of Civil The com- Siskiyou Forests. National this second Hogan dismissed Judge trict injunctive declaratory and sought plaint the Rule and denied prejudice without suit to com- Forest Service requiring the relief American Lands. 60(b) regarding motion impact statement plete an environmental shows, only record As far as comply otherwise under NEPA and (“Headwa- here then did NFMA, NEPA, procedural and APA ters”) learn of the log- implementing requirements before Klamath-Siskiyou litigation and seek to plans. ging case, possi- on the gestión, does bear this fact Head- in this 1. There are two waters, bility privity Headwaters the Forest Conservation between Inc. and Headwa- regard indicates that Council. The record to the timber Center with Wildlands Council, ters, coplain- has been but not the and the For- here. Headwaters sales issue Cen- Wildlands tiff with the are therefore identi- est Council Conservation Headwaters, Inc. v. litigation, in unrelated ter deciding purposes cally wheth- situated for Management, 01-3063 No. Bureau Land precluded. instant suit is er the (D.Or.). sug- Contrary government’s enjoin challenged the timber sales. Head- the reach merits of the undevel- oped preclusion issue. instigated suit the same district waters in which the American court The district court’s order of dismissal Klamathr-Siskiyou filed, using had been only recounted following pertinent the lawyer complaint the same and similar facts: That it had heard argument (but not as in Amer- case,” “similar Klamath-Siskiyou; Lands). ican The current chal- complaint Headwaters had hired the Klamath-Siski- only lenges two of the nineteen sales chal- you attorney; Wildlands Center’s that the Lands; lenged represents complaint Headwaters “virtually contained of, parties that the make different use and identical claims” as the Wildlands Cen- in, ter’s; have interests the than different forests and that parties the in the earlier “ the American Lands did plaintiffs; seeking cases were ‘not ... any themselves, particular endangered peculiar its claims to interests relates public right the American Lands com- species, require which the Forest .,.. Ser- compliance vice with NEPA plaint did the Judge Hogan, [and not do. to whom Block, Sierra Club v. (quoting NFMA]’” present case was also assigned, dis- (D.Or.1983)) (altera- 576 F.Supp. missed the Headwaters sua complaint tion in original). From those consider- doctrine, sponte judicata under the res alone, ations the district court concluded heard no having argument and received no judicata “[t]he elements are briefing on either the merits of the or case satisfied.” judicata.2 the applicability of res

Although may preclusion grounds be dismissal when neither has raised Sponte II. Sua Dismissal issue,3 Evarts v. Finishing W. Metal My major concern is majority’s with the Co., Cir.1958), F.2d 639 n. misapplication of concept serious so far Ias can tell this court has never privity, with the result upheld sponte a sua dismissal for or claim being improperly are denied preclusion parties issue where the case, day however, their in court. This given any opportunity to be on heard disposed could and should have been Apodaca, In McClain v. issue. reaching ever before merits Cir.1986), F.2d 1032-33 af-we preclusion issue decided district firmed a entered par- dismissal after the court. The district court dismissed the post-trial ties filed briefs on a res complaint sponte, affording sua without question initially raised bankruptcy plaintiffs any opportunity to contest its v. Risley, Hawkins Similarly, court. (9th Cir.1993) determination that preclud- their suit curiam), was (per ed. I would ground reverse on this alone we affirmed a dismissal after the proceedings The record in this case is silent on what have a direct relation to matters next, may happened judicial issue.”). but we take no- The American Lands docket, tice of the American Lands which 9, 2001, August withdrew that motion on after original plaintiffs shows that all the in that sponte the district sua court’s dismissal of this case filed a motion for relief earlier case. July days on dismissal four after the complaint Headwaters See St. filed. obligation 3. A court has no to raise FDIC, Baptist Temple, Inc. v. Louis Platters, Inc., Robi v. its own. Five (10th Cir.1979) courts, ('"[FJederal (9th Cir.1988). circumstances, appropriate may take no- proceedings tice of in other ... if those courts

1036 factu- require considerations pertinent and the to examine opportunity “adequate had pleadings. development outside the bare preclusion” be al application the contest cir- regarding the at 324. Con law of this circuit court. Id. district fore the non-party can be Employees in which”[a] in Nevada cumstances versely, State of (9th by his litigation F.2d 1223 Cir. choices made Keating, by 903 the bound Ass’n 4 because, recently by not allow sum- 1990), representative” virtual we reversed issue, Irwin, trial court in a somewhat “the marized in albeit briefing on the ing short, judicata decision to “In a close rela- subject context: its different did ” .... tac- process participation, and tionship, substantial rigors of the adversarial the finding of maneuvering support Favish v. all a also tical Id. at see Office of (9th Counsel, identity 1171 of inter- representation; 217 F.3d virtual Indep. Cir.2000) court raised are nec- (noting adequate representation that district ests provided F.3d at 930. sponte essary finding.” such a estoppel collateral sua to indicates, argue); summary pertinent Wil the parties opportunity an As this the Corp., require 208 F.3d Dynamics include factors liamson v. Gen. considerations Cir.2000) (9th that, (instructing allegedly in the record the development a remand, could precluded litigation. the on first raised estoppel problem collateral majority here example, although For court). the district assumption an that the part relies in on majori- have come to The closest we made Steel here was Columbia ty’s decision manipulate ... “tactical decision Fabricators, Recovery, Inc. v. Ahlstrom preclusive and avoid a ef- court’s decision Cir.1995). (9th there, Even F.3d prior judgment,” of a ante fect summary sponte a sua while we affirmed in this case implies de- nonappearing of a judgment favor ac- “arrang[ed] for successive somehow estoppel, on collateral we fendant based ability to leaving tions the Forest Service’s on the fact that opinion rested our regulate perpetually the National Forests summary judgment parties who lost flux,” no record ante at there is pres- provided opportunity had been True, assertion. support for either application arguments ent that the asserting here are afforded no Headwaters was preclusion. this suit be- preclude does not opportunity. such in nor were they participated cause neither But fairly in the earlier one. inap- represented sponte particularly dismissal is Sua one, manipulation tactical to call that assertion in a such as this where propriate case varies, sufficiently represented in terminology its interests were Although the use of comport process case to with due opinions, this circuit and the earlier more careful in both Irwin, others, requirements. F.3d at 930 recognize "privity” term used (" concept '[P]rivity’ ... of virtu includes generally to denote those circumstances (alteration original; ci representation” al preclude a absent which it is fair to omitted)); Lynch, bringing Becherer v. Merrill tation from the earlier Smith, Inc., Schimmels, Pierce, suit, see, e.g., Fenner & In re later Airlines, 1999) (en banc) Cir.1997); (6th (stating Cir. v. Am. 422-23 Tice Inc., Cir.1998), categories, privity concept includes three while interest, controlling parties, and representation” subcategory successors in is a "virtual nonparty adequately represented covering "a who is "privity” circumstances in which the category party”; last is also termed requisites privity are miss traditional more (Moore, representation”); at 431 id. ing, party can nonetheless be "virtual but an absent J., (same). concurring judgment) fairly precluded litigation because from future preclude relationship present of a defense to about the between the assertion absolutely ones, no preclusion claim. There is and the former such as manipulation indica- indication of real whether Headwaters and the Wildlands —no that, example, overlapping tion for Center have officers or mem- information, or bers. Without that can- one instigating relationship” were somehow involved not evaluate the “close prong suit, it, that, funding conversely, or in or of this representation/privi- circuit’s virtual present plaintiffs arranged ty analysis, for the ear- as articulated in Irwin. litigation. lier short, In problem precipi- Similarly, simply there is no record before us tous dismissal here is not that there concerning adequate representation con- opportunity was no legal argu- make siderations. do not know regarding We whether ments preclusion but that there Headwaters knew of the earlier suits while was no develop pertinent chance to facts. they pending, why or the American should proper We vacate and remand for prejudice Lands suit was dismissed with in development any preclusion of If issue. any apparent the absence of benefit to the that, going we are not to do then we Richards, cannot, that case. See 517 majority, as does the decide the 800-01, (noting at 1761 U.S. S.Ct. if case as facts were established that are ordinarily absent must have notice not. of an earlier suit could resolve their Adequacy Representation III. that,

legal rights, “adequate while rep- might resentation cure a lack of ... majority recognizes, notice As the we allow to have a prior proceeding, binding preclusion effect claim to run third par- when, when, parties, only on absent would at least have to ties a later suit (1) suit, pres- be ‘so devised as to insure that those involves identical claims as a (2) judgment ent are of the same class as those absent a final the merits (3) suit, and that the is so as to prior privity par- conducted between the insure the full and fair consideration ties the two actions. Tahoe-Sierra ” Council, (quoting Hansberry Reg’l common issue.’ v. Pres. Inc. v. Tahoe Plan- Lee, 32, 43, 115, 1064, ning Agency, 311 U.S. 61 S.Ct. 85 L.Ed. (1940))). Cir.2003).5 anything Nor we do know The central issue this case 970, (1979). majority Any pre- 5. The treats the case as one 59 L.Ed.2d 210 issue necessarily involving preclusion— contention would claim rather than issue clusion here terminology, preclusion, judicata in the old fail. Unlike claim rather estoppel. Migra "[wjhen than collateral v. Warren only preclusion issue attaches 75, of Educ., City Sch. Dist. Bd. 465 U.S. 77 n. litigated actually issue of fact or law is 1, (1984); 104 S.Ct. 79 L.Ed.2d 56 see by judgment, determined a valid and final Maine, Hampshire also New v. U.S. and the determination is essential to the 748-49, (Second) judgment.” Judg- S.Ct. 149 L.Ed.2d 968 Restatement (2001). (1982). Supreme p. § Court indicated has ments "In the case of confession, consent, parties necessarily of absent entered default, estoppel actually "falls under the rubric of collateral or none of the issues is e, [Id., 257], litigated rather than res because the latter ...” comment at 392, 414, identity California, presupposes doctrine causes 530 U.S. between Arizona (first (2000) action. al And cause of action which 147 L.Ed.2d 374 nonparty vicariously original); Gospel has asserted differs teration in see also Missions Angeles, subsequently City Am. v. Los definition from which he denied,-U.S.-, (9th Cir.2003), right.” seeks to in his cert. own Montana States, (2003). v. United 124 S.Ct. 157 L.Ed.2d 279 As (SECOND) JUDGMENTS, ch. OF I MENT final, there- privity prong. concerns the (1980); also Fed.R.Civ.P. topic 2 see privity issue. concentrate on fore associa- affecting actions 23.2(governing record, paucity Given tions). similarity that a majority necessarily holds a sufficient basis alone is of interests However, is now used ‘privity’ “the term plaintiffs, binding later finding privity relationships between to describe various is one in that interest in cases which least come within that would not have litigants “public.” characterized as that can be term.” definition of the traditional our squared with conclusion cannot be This Richards, 116 S.Ct. 1761. 517 U.S. Court, the Supreme or that of the case law for this state- cited two sources Richards reliance on isolated majority’s selective (Second) Judg- ment: the Restatement notwith- from various cases sentences Wilks, Martin v. ments and standing. (1989). 2180, 104 L.Ed.2d 835 “ privity adds to the traditional ‘Privity’ ... is The former Privity Generally: 1. per- in “[a] circumstances which person categories a so ‘designating legal a conclusion ... a to an action party for- son who is not party in with a interest identified including by party,” a trustees precisely represented represents that he litigation mer beneficiaries, fiduciary other relation- subject in and right respect the same ” Schimmels, legal representa- or ships and consensual In matter involved.’ re (9th Cir.1997) relationships, representa- and (quoting “[t]he tional situated, similarly persons tive of a class of v. Tex. Int’l Air- Southwest Airlines Co. Cir.1977)). lines, Inc., approval as such with the designated 546 F.2d court, a mem- person of which the traditionally, arose from a limited the Privity, (SECOND) OF RESTATEMENT legal relationships in which two ber.” number 41(1). Martin, § rights identical or transferred JUDGMENTS parties have Richards, adds “certain portion quoted particular legal to a interest respect with person, a res, which] limited circumstances chiefly: [in co-owners and co-tenants or heirs, his interests although party, not a has and their property; decedents by someone who is adequately represented claim- in interest and survival successors “ bailees; ‘representa- ‘class’ or ants; joint obligees; party,” including a and bailors litigation on and “control of to a con- tive’ suits” assignors assignees; parties and litiga- one of the tract, promisees and behalf of some cases tion,” “special remedial beneficiaries; as well as indemnitors and third-party expressly foreclosing ... suc- indemnitees; their offi- corporations scheme[s] by nonlitigants, as for shareholders; and their cessive partners cers or probate.” or example bankruptcy unincorporated associa- partnerships; 2,109 U.S. at 762 n. tions and their members. See RESTATE- (applying judicata to bind legal determina- there were no final factual or Lands, dismissal, prose- in American the final for want of tions federal court to collaterally estop cution, cannot American Lands complaint state-court Headwaters. plaintiffs). overlapping group of As I would cases, however, appear do not to have Our suggested by reach the same result as suggested Mon- adhered to the distinction through preclusion analysis, a claim Montana See, Schimmels, e.g., 127 F.3d at 885 tana. question pursue the whether I do not further judg- (binding government default analyzed involving properly as one this case is relators); against qui Pedrina v. ment Chun, tarn preclusion. rather than issue claim Cir.1996) 97 F.3d 1302-03 maneuvering” circumstances, litigation, the earlier or “tactical amalgam of It is this privity relation than traditional equi broader h ave also been 7— it, that, have been as I understand ships, favoring preclusion. table Ir factors repre in our cases as “virtual referred to win, 370 F.3d at see also Green v. sentation,” recently summ and that Irwin Tucson, 1100-01(9th City But, indicates, and as arized.6 as Irwin Cir.2001) (en banc). Circuit, confirmed, has my research particular, mirroring In the Restate- Circuit, Am. see Tice v.

like the Seventh ment criteria for representational rela- 971(7th Airlines, Inc., Cir. tionships cabining the Irwin “close 1998), recognized preclusion has never factor, stressed, relationship” we have re- interests, solely parallel legal based peatedly, “nonparty for a Instead, be [to] other fac identical or otherwise. if closely aligned bound is so relationship between the for tors —a close in present litigants, participation its interests as to be its ‘virtual represen- mer Irwin, Pedrina, opinions other circuits in 1302. See 370 F.3d at 6. Trenchant from 930. however, years questioned utility of the recent have does not mention that consider- Pedrina, representation” plain- and the con term "virtual ation. And in of the ”[m]ost encompassed, especially light cepts parties has it tiffs in the instant action were to the Supreme analysis proceedings, plain- Court’s in Richards. earlier state court and the Becherer, 422-24; F.3d at id. at 431- argued any tiffs have not that there was lack J., 32(Moore, concurring judgment); in the privity plaintiffs’ on the side.” F.3d at Tice, Bittinger Thus, v. Tecumseh partic- 1302. who did not Prods., 1997); (6th 123 F.3d 880-82 Cir. ipate proceedings apparently in the earlier Schoemehl, Tyus v. 93 F.3d 458- see also acquiesced representation by in their those J., (8th Cir.1996) (Henley, concurring who did. result). I tend to share the concerns articu Indeed, ascertain, as far as I can there is no by Judge Wood for the Seventh Circuit lated appellate federal case in which the "deliber- representation” concept that the "virtual maneuvering” necessary ate doctrine is to the "amorphous,” the harm that can "illustrates holding. Although Eighth Tyus Circuit in catchy phrase be done when is used to factor, did discuss that the essence of that result,” perfectly describe a sensible case is that the in the second suit light prob “cast[s] more shadows than seeking who included individuals were Tice, to be decided.” 162 F.3d at 970-71. lem litigation decisions made an avoid earlier sympathetic I am also' with accusations they parties. 93 F.3d at case in which representation that virtual a clear or "lack[s ] Wallace, (11th v. 837 F.2d 452. Jaffree theory,” coherent is invoked "in circum Cir.1988) curiam), (per likewise involved ma- go beyond anything easily stances that is family neuvering by jumped who had in and "episodic” lacking any justified” in cases actions, and been out of related so had actual- pattern,” appear "clear and does not original ly present suit have found to anything of value to other theories of “add[] preclusive effect their later claims. WRIGHT, ‘privity.’” 18A CHARLES ALAN Similarly, "participation” the "control" or ARTHUR R. MILLER & EDWARD H. COO encompass consideration would circum- PER, FEDERAL PRACTICE AND PROCE losing litigant stances in which in one (2d ed.2002). § at DURE 512-13 For litigant case funds and directs a second filed however, present purposes, I use the terms as plaintiffs, of other so as to further the name that, capture it is used in Irwin—to the factors his own interests rather than those of the privity in additional to traditional relation putative factors. ships, justify the in later I therefore far from certain that there is am parties not of record in an earlier case. independent ought "tactical ma- or to be cases, Irwin, neuvering” Although including consideration. As the facts of this our have factor, case, aside, implication maneuvering” majority’s mentioned the “tactical do maneuvering, only prove any address case of this court has been cited such I do not Pedrina, applying at the issue further. as that factor is 97 F.3d ” certainly no “plus” factors. There is tative,’ express “an or Irwin there must be relationship by relationship by parties implied legal which or implied legal “express to non- are accountable first suit parties to the first suit which the virtue of subsequent suit with who filed a non-parties who filed are accountable to ITT States v. identical issues.” United identical issues.” subsequent suit with Inc., 627 F.2d Rayonier, Rayonier, ITT 627 F.2d at 1003. Favish, Cir.1980); at see also far as the litigants, accountability require- (repeating shows, legal have no connection— record ment); Geophysical United States connection, indeed, than similar no other Alaska, 693, 697 Corp. of Forest Service’s timber concerns with the Cir.1984) (same). the accounta- Applying Headwaters, and were no sales—with if implicitly explic- bility requirement, way present plaintiffs accountable to the held, example, itly, we have Instead, have here suits. we their earlier relied from this court most three cases in en- nothing “an abstract interest of an majority, that members upon legal requirement, same forcement” of the authority represent organization with that, as the lawyer, and the same a factor regard property its owner members in, majority recognizes, was also preclud- property to their use of their are Bell, in, rejected South Central raising the filing a second suit ed also 119 S.Ct. 1180. See U.S. litigated by the or- previously issues same Favish, 1171(fínding privity at no Tahoe-Sierra, at ganization, lawyer).8 a his There party between and 1081-84; that the United States is bound is, no in our consequently, simply basis relator, by prior qui by a tarn suit filed a law, from out-of- prior case aside some relation- given legal representational conclu- language, supports context govern- the relator and the ship between majority I would re- sion the reaches. Act, by ment created the False Claims verse on that basis. Schimmels, 882-84; 127 F.3d at and that federal Environmental Protection Representation: 2. Even Adequate filing a second Agency precluded is original proposition, considered as an Depart- enforcement suit after the state in- majority’s conclusion that concurrent Ecology litigated of had earlier ment preclude litigant terests aloné can a who violation, given the relation- alleged same litigation cannot was absent from earlier enforce- ship between state and federal Richards, or, for a dif- be reconciled with authority under the Federal Water ment already surveyed, than those ferent reason Act, Rayonier, ITT Pollution Control recognizes, Irwin ade- with Irwin. As Conversely, we have re- F.2d at 1003. a non of quate representation qua is sine privity, represen- find or virtual fused to representation” so-called “virtual tation, the former and liti- where F.3d at 930. And privity. branch only “an abstract interest gants shared holds, adequate representa- as Richards legal require- of the same enforcement” process prerequisite pre- tion a due is Favish, 1171(quoting ment. 217 F.3d at if cluding litigant day from his court 1003). Rayonier, ITT 627 F.2d at litigation. earlier he was not a to the 800-01, I Here, recounted, at 116 S.Ct. 1761. already the record as adequate any of the therefore understand Irwin’s simply does not demonstrate Lands, upon lawyer the case which the plaintiffs’ 8. in this case is the The Klamath-Siskiyou, majority preclusion. but not as in bases same as in 115). prong subsuming Rich- U.S. at As the two representation sets process requirements. ards’s due were otherwise “best de- another,” strangers scribed as mere to one taxpayer considered a class ac- Richards was “unable to Court conclude that the county tax challenging tion on federal plaintiffs provided representation [earlier] grounds. county The constitutional up sufficient to make for the fact that [the by precluded claimed Richards’s suit was in, plaintiffs] participated later neither nor city Bir- an earlier case which the in, opportunity participate had the (not mingham taxpayers and three other (citations action.” Id. [earlier] inter- class) claiming represent litigated omitted). quotation nal marks Reaffirm- tax. challenge lost state-law later, ing Richards three Terms the Court that, Supreme of Alabama held be- Court declined to find third-party preclusion cause the earlier could have Bell, again stressing South Central analogous raised federal claims in their relationship absent some between the liti- suit, precluded that suit Richards’s. See gants protections two cases or the ac- 795-96,116 at U.S. S.Ct. rules, corded action class a second reversed, Ala- holding The Court group bound earlier application bama’s foreclos- litigation simply because it is asserting plaintiffs’ process ed the Richards due 167-68, parallel interests. 526 U.S. court, right day to their own even Green, S.Ct. see also 255 F.3d at though they “essentially claimed identical” 1100-01(explaining Richards litigated interests as those before. Id. at require South Central Bell more than empha- 1761. As the Court identity third-party preclu- interests for sized, plaintiffs gave individual no run). sion to that they notice to Richards’s class intend- entirely It mysterious to me how the represent ed to on behalf of maintain, majority can in light of Rich- class, 799, 1761; id. at there S.Ct. ards, “strangers” that the in this case were no hearing was indication the court case, accorded in the first protect first case “took care to the inter- Lands, “litigation so conducted as to in- 802, of’ plaintiffs, ests the Richards id. at full sure the and fair consideration of the 116 S.Ct. and “the did not at Hansberry, common issue.” purport any county taxpayers to bind who Richards, Thus, in quoted nonparties.” were Id. “to contend in that in U.S. at 116 S.Ct. 1761. As Rich- litigation] earlier [the ards, litigation the American Lands was represented petitioners, somehow let alone action, represented constitutionally puta- them in a ade- not structured as a class even manner, was, quate tively.9 appears, would be ‘to attribute to There as far no power any party regarding them a that it cannot said that notice to be absent ” or, they pending litigation, perhaps had assumed to exercise.’ Id. at more criti- instance, in 1761(quoting Hansberry, cally proposed this of the “set- criteria, (9th Hayakawa, In Jackson v. 605 F.2d 1121 not meet the Jackson as it was nei- case, 1979), Cir. we that al held an earlier ther filed nor treated as class action. But Tice, though formally 973-73(holding, not under Rule see Richards, 162 F.3d at after certified "[ujnless brought properly “was as a class action and treated there is a action,” privity analy- the court as a class and so entitled to class action ... normal certified sis preclusive govern nonparties effect de must whether to an members of the (em- Assuming facto class. Id. at 1126. Jackson is earlier case can be bound to the result” Richards, added)). good phasis still law after case does this hold, I I so would not consider no reason As would court had tlement.” The district whether, through prism at dismiss looked stipulated to consider whether actual rather than the and did not do incentive to parties al was fair to absent 23(e); history, there is a class of cases v. Boe Staton so. See Fed.R.Civ.P. (9th original liti- Co., the incentives of the 952-53 Cir. which ing 327 F.3d circumstances, 2003). any possible legal the best chal- gant to mount these Under protec- for structural lenge can substitute notion that the American Headwaters, parties provided such as is tion of absent adequately representing See, otherwise, litigation. e.g., Tyus v. a fiction. for class virtually or Schoemehl, n. 7 93 F.3d 455-56 & case, either, in which one This is not a Cir.1996). But looked at in terms of even the earlier say retrospect could incentives, could be no such ex ante there fairly litigated. fully in fact case was no assurance preclusion here. We have Tahoe-Sierra, See, g., e. plain- case that the American Lands liti years vigorous 1077(noting eighteen bring Litigants such an interest. tiffs had issue); Rayo- ITT controlling of the gation time, any dismiss suits all the for nier, 1003(noting F.2d at absence only tangentially relat- of reasons number any that the virtual that case of indication subject-matter ed to the merits vigorously not assert representative did the suit. American Lands Rlamath- As far as the rec position). the common relief, injunctive Siskiyou sought only both shows, position was not ord the common damages, and neither were suits all, compromised it litigated at nor was attorney prevailing fee award for which an to absent any way provided benefit conclusion, litigants foregone see 28 (or, matter, present) parties. for pursue § the incentives to U.S.C. so True, de stipulated dismissals are merits monetary. For all we the case were judicata purposes terminations for res know, plaintiffs were the American Lands in single party’s interests are when attempting or were only seeking publicity, See, e.g., volved both cases. Concha nonlitigation activity, or to bolster some London, 1493, 1507-08 Cir. into hoped to bluff the Forest Service 1995).10 hold, however, that a I would abandoning plans litigation, without full its stipulated dismissal not submitted to the they or realized that would not be able to possible as to its court consideration standing litigate. Bell v. establish simply cannot fairness to absent Cf. Admin., 945, Power Bonneville pur fully fairly litigate and an issue for (9th Cir.2003) (holding plaintiffs lacked 951 adequate representation poses providing of challenge). a standing to mount NEPA entirely party. absent independent to an Thus, pres- I do not think that the while turn the “full Any other conclusion would in strong litigate fully of ence incentives requirement and fair consideration” of 43, 115, the earlier case can substitute for structur- 61 Hansberry, 311 U.S. at S.Ct. Richards, 801, protections al of absent or evidence 517 U.S. at 116 S.Ct. actual, 1761, vigorous litigation, this case into an illusion. of merits,” stipulated only judgment a "actual- dis- "on the It is not even clear that 10. judicata named directly partic- missal has res effect for the ly passes on the substance of a parties in the dismissed suit. In SemtekInter- triggers the court ... ular claim before Corp., national Inc. v. Lockheed Martin 531 preclusion.” of res or claim doctrine 497, 1021, 149 L.Ed.2d 32 U.S. 121 S.Ct. 501-02, (alterations 1021 Id. at (2001), although dismiss- the Court noted omitted). citation commonly adjudications als are denominated

1043 of the fairness of the rules of ques- consider the the measure no occasion to presents judicata,” id. at S.Ct. tion. States, (quoting Bruszewski v. United senses, majority’s contrary in the One (3d Cir.1950)), F.2d the federal repre of regarding adequacy conclusion largely courts abandoned the mutual have sentation, asymmetry with the disquiet in ity principle savings favor of such Rich process principle under of the due judicial constitutionally per resources as is course, true, that had the It is ards. Allen, 94-95,101 missible. See 449 U.S. at original lawsuit taxpayer plaintiffs Shore, Hosiery Parklane Co. v. S.Ct. Richards, in American plaintiffs or the L.Ed.2d 552 S.Ct. here, prevailed, Labs., (1979); Blonder-Tongue at U.S. might well have benefi litigation second 330-33, generally 91 S.Ct. 1434. See 18A ted, by way of stare decisis or non- either WRIGHT, CHARLES ALAN ARTHUR Pérez- estoppel. mutual collateral COOPER, R. MILLER & EDWARD H. (1st Gracia, Guzmán — FEDERAL AND PROCE PRACTICE denied, U.S.-, Cir.2003), cert. (2d ed.2002). § at 677 To DURE (2004). But 158 L.Ed.2d 401 representation of virtual concepts broaden pre no different than asymmetry is include, protections, without class action general law vails under modern all circumstances which ly- identi second seek to raise “the disasters, multi- “Multiple victims of air already litigated cal issue” without their companies that have ple stockholders mutuality participation is to resuscitate the violations, and multi- committed securities expense at principle, albeit this time pensions normally ple rights holders of process requirements. due constitutional if bring own suits even may all their Proposed Excep- 3. The Public Law single in a course of engaged defendant majority’s response tion: The to all of the Tice, 162 at 968. The conduct....” one, foregoing, suggests insofar as it is that, Supreme as the reason this is so Richards, case, involves unlike recognized rejecting the venera- Court areas,” “public that in law “public law mutuality estoppel principle, due ble areas,” of both due different considerations require: so process principles at process public policy prevail. Ante ap- who never litigants- Some —-those Richards indicated that where a -may not be peared action-— “public ac- litigant complaining about collaterally estopped litigating without only impact on his tion that has indirect They have never had a the issue. interests,” only process principles due their evidence and chance to suits permit limitation successive arguments process on the claim. Due permit states different estopping despite them one or prohibits deny entirely. 517 standing U.S. adjudications identi- existing more of the for 1761. The federal case cited 116 S.Ct. squarely cal issue which stand in v. Mel- proposition Massachusetts position. their lon, 447, 486-89, 597, S.Ct. 67 262 U.S. 43 Labs., 329, 91 Blonder-Tongue 402 U.S. at (1923). L.Ed. 1078 principles Because similar do S.Ct. 1434. telling that Mellon held that there party was a It is require not one who standing in federal court to taxpayer a chance to is no the first case have of anew, litigate challenges of to the misallocation “the achievement and because injury, personal symmetry public is funds without some justice rather than substantial true, court, that “the of Educ., simply not federal v. Bd. 342 U.S. see also Doremus (1952), standing po- is number of with 96 L.Ed. 72 S.Ct. limitless,” tentially and courts do ante at 1031. although state statutes some con standing without taxpayer authorize Conversely, of the number see, injury, e.g., Smith Gov’t crete of standing complain with about the validi- (3d Islands, Cir.1964); 329 F.2d 131 Virgin tax statute is ty generally applicable of a Chamber Com Piggott Hollis v. Jr. of large, question and the whether a tax quite merce, Inc., Ark. 453 S.W.2d and therefore statute is unconstitutional (1970). citation therefore The Mellon surely question “pub- of unenforceable is an indication that there cannot taken as be law,” it lic both the sense that involves cases that are category federal government and in the prerogatives as to which the “public law” cases and large sense that it affects a number apply. does not holding Richards Yet, people. Richards holds that there category I such a of fed- do believe in- parallel cannot be based cases, exempt from Rich- “public eral law” alone, notwithstanding concerns of terests process requirements, exists. ards’s due “judicial economy and cost to defendants.” litigants standing purposes, For federal all that, consistently Ante at 1031. I assume particularized,” must show “concrete Richards, majority permit would II, “injury Lujan in fact.” redressable a landowner a national forest to sue to “[b]y at 2130. And U.S. S.Ct. contest a federal limitation on the use of particularized, [the Court] mean[s] other, entirely if property his even inde- injury plaintiff must affect the a pendent previously landholders had way.” at 560 n. personal and individual Id. (or brought stipu- suit and lost similar I,112 ‘injury in fact’ S.Ct. 2130. test “[T]he suit). lated to dismissal of the Because of injury cogniza- than an to a requires more requirements standing, of federal requires It ble interest. concept “public because the law” is nec- in- seeking among review be himself essarily amorphous, principled there is no Morton, jured.” Sierra Club v. 405 U.S. a “public distinction between such law” 727, 734-35, 92 S.Ct. 31 L.Ed.2d 636 case and this one.11 (1972). Further, litigants may federal Moreover, solely upon “generalized grievances” majority

sue the concerns the ex- where, large. Valley surely at presses place shared are out of here, Forge adjudication v. Ams. there has been Christian Coll. United no for State, Inc., Separation litigating Church & 454 common issue. Far from ad infi- nitum, sequence U.S. 70 L.Ed.2d the defendant in this (1982) (citation omitted). Thus, all, nor, litigated it is cases has not as far as allege place, plans,” 11. The here that their mem turn” to a without "concrete give plaintiffs standing litigate allegation “regularly enjoy and staff use and bers publicly-funded project there threatens environmental, recreational, ... forests (alteration original; wildlife ted)); citation omit- educational, spiritual, pur and aesthetic I), Lujan (Lujan v. Nat’l Fed. Wildlife added), poses” (emphasis specific and cite 871, 885-86, par harms the members would suffer should (1990) allega- (holding L.Ed.2d 695 that an species ticular threatened be harmed plaintiff vicinity” tion a used land “in the of a challenged logging, a feature absent from the challenged insufficiently specific action II, Lujan complaint. American Lands ground standing). people Cf. The number of who (stating U.S. at 112 S.Ct. 2130 that nei regularly ited, particular surely use a forest is lim- “past exposure” "potentially “inten[t] ther nor an to re- not limitless.” entirely protections class action ing the litiga- agreed it as result has appears, 23(b). here. See Fed.R.Civ.P. To absent any way. position its change tion to circum- these under preclusion permit nothing here, Forest did But Service concerns policy substantial stances raises Nonetheless, district the kind. have to sort, as courts would of another dismissal, entered on a court relied sufficiently to case the earlier investigate merits, to on the any litigation without fide. was bona that it assure litigants entirely separate foreclose how the simply I do not see proceeding. been no has there largely It because subjected to suc- unjustly would Service be moreover, merits, that this on the litigation for the required, it litigation were cessive misleading impression presents case time, action on to defend only its first and po- that, litigants preclusion, absent in this suit. the merits bring could sition in- allegedly challenges successive Conclusion IV. courts’ sales. federal timber valid a novel majority proposes preclusion issue Because nonmutual to approach arena, squared be rule that cannot that, public-law preclusion even shows or precedents well-estab- litigation, this court’s threat of infinite is no there respect- I process, and of due can principles nonmutual lished because conducive fully in a manner dissent. applied must be litigants. economy and fairness judicial 326, 331-33,

Parklane, 99 S.Ct. the mer- litigation on there is

645. Where earlier run

its, will between stare decisis touching on the appellate cases

and later cases appellate and between issues

same Pérez- court later cases. district Guzmán, at 237. Considerations FERREIRA, Joaquin Oliveira Manuel as well persuasiveness, comity and Petitioner-Appellant, see, Local rules, D. Or. e.g., case related v. see 28 42.4, requirements, venue Rule unlikely that dis- make it § U.S.C. General, Attorney ASHCROFT, John contrary results reach courts will trict Respondent-Appellee. challenges. See identical raising cases 02-16945. No. Maine, 420 U.S. States United (1975) L.Ed.2d 363 Appeals, Court States United (“[T]he ... were defendants] Circuit. Ninth they are ... suits] to [earlier 10, 2003. Oct. Argued Submitted litigating judicata from precluded by But the by those cases. 2003. the issues decided Nov. Vacated Submission powerful is still decisis doctrine stare July 2004. Resubmitted Moreover, jurisprudence.”). in our force Sept. Filed about seriously concerned litigant indistinguishable successive a declara- it countersue could

plaintiffs, plain- the class

tory judgment thereby invok- represent, thought

tiff is

Case Details

Case Name: Headwaters Inc., an Oregon Non-Profit Corporation Forest Conservation Council v. U.S. Forest Service

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 8, 2004

Citation: 382 F.3d 1025

Docket Number: 01-35898

Court Abbreviation: 9th Cir.