The Northwest Forest Plan substantially curtailed logging on public lands
by private concerns.
After the Northwest Forest Plan had been adopted, NFRC and other
pro-industry co-parties promptly challenged it by filing the instant case
and a related case, Northwest Forest Council v. Thomas, Civil Action No.
94-1032 (D.D.C. filed May 11, 1994), in the U.S. District Court for the
District of Columbia. A confederacy of Oregon counties simultaneously
filed Association of O & C Counties v. Babbitt, Civil Action No.
94-1044 (D.D.C. filed May 12, 1994), which also challenged the Plan on
various theories of arbitrary and capricious agency action.
This Court acted on these cases in a series of rulings. To conserve
judicial resources and forestall the prospect of potentially inconsistent
judgments, on June 30, 1994, the Court transferred the Thomas case to the
Western District of Washington, but stayed this case and the O & C
Counties case — neither of which was eligible for transfer —
to await the outcome of the earlier-filed consolidated Seattle
The combination of the Thomas transfer and the two stays caused a
complex chain-reaction amongst the several cases. NFRC voluntarily
dismissed the Thomas case rather than have it heard in the Western
District of Washington. The government then filed a cross-claim against
NFRC (a co-defendant in the Seattle litigation) for a declaratory
judgment to the effect that neither this case nor the claims made in the
now-defunct Thomas case had merit. NFRC responded with a petition to this
Court for an injunction prohibiting the government from prosecuting its
cross-claim in the Seattle litigation. The Court declined to rule on the
petition, allowing the matter to become moot on December 21, 1994, when
Judge Dwyer issued an order awarding the government summary judgment, and
disposing of the cross-claim in the process, by declaring that the
Northwest Forest Plan met the standards established by applicable
environmental laws in all respects. See Lyons, 871 F. Supp. at 1325. On
February 15, 1995, Judge Dwyer concluded the Seattle litigation with an
entry of judgment upholding the Northwest Forest Plan.
On February 28, 1995, NFRC moved to lift the stay in this case, but
this Court extended the stay until the Ninth Circuit had affirmed Judge
Dwyer's decision in the Seattle litigation on April 10, 1996. After the
Ninth Circuit issued its opinion, the Court dismissed this case on stare
decisis grounds on May 22, 1996. Plaintiffs appealed, and on March 7,
1997, the D.C. Circuit rejected stare decisis as a ground of decision,
reversed the dismissal, and remanded the case with instructions to the
Court to determine whether plaintiffs' claims in the case are barred by
principles of issue or claim preclusion. See Northwest Forest Resource
Council v. Dombeck, 107 F.3d 897, 901 (D.C.Cir. 1997).
The government's motion for summary judgment makes two basic
arguments. First, because AFRC (in its prior incarnation as NFRC) was a
party in the Seattle
litigation, the doctrine of res judicata bars AFRC from litigating its
claims here. Second, the doctrine of virtual representation precludes
AFRC's 13 co-plaintiffs as well from re-litigating the issues that were
raised — or should have been raised — in the Seattle
litigation, even though they were not formally parties thereto.
The doctrine of res judicata bars a party from re-litigating claims
that were, or could have been, asserted in the initial action. See Allen
v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). "The
doctrine of res judicata serves vital interests in the administration of
justice" by "prevent[ing] repetitious litigation involving the same
causes of action or the same issues." I.A.M. Nat'l Pension Fund, Benefit
Plan A v. Indus. Gear Mfg. Co., 723 F.2d 944, 946, 950 (D.C.Cir. 1983).
For res judicata to apply, the following elements must be satisfied: "(1)
an identity of parties in both suits; (2) a judgment rendered by a court
of competent jurisdiction; (3) a final judgment on the merits; and (4) an
identity of the cause of action in both suits." Paley v. Estate of Ogus,
20 F. Supp.2d 83, 87 (D.D.C. 1998).
The government currently observes that all four requirements are
satisfied to bar AFRC from re-litigating its own claims. First, AFRC is
the successor-in-interest to the Northwest Forest Resource Council
("NFRC"), which was a party to the Seattle litigation and merged into
AFRC on January 1, 1999. Second, the Western District of Washington,
which rendered the judgment in the Seattle litigation, is a court of
competent jurisdiction. Third, the judgment, entered February 15, 1995,
and affirmed by the Ninth Circuit on April 10, 1996, was final and on the
merits. Fourth, the cause of action in the instant case and in the
Seattle litigation is identical.*fn2
AFRC does not dispute the government's claim that all four elements of
res judicata are satisfied, but instead argues that res judicata should
not apply in the circumstances, because the government sought only
declaratory relief against NFRC in the Seattle litigation. Under the
so-called declaratory judgment exception to the doctrine of res
Where a party asks only for declaratory relief, courts
have limited the preclusive effect to the matters
declared, hence permitting a later action seeking
coercive relief based on the same cause of action.
indeed, the very language of § 2202 [of the
Declaratory Judgment Act] indicates that the
prevailing party in a declaratory judgment may seek
further relief in the form of damages or an
Horn & Hardart Co. v. National Rail Passenger Corp., 843 F.2d 546,
549 (D.C.Cir. 1988).
As the government counters, however the declaratory judgment exception
does not apply in this case: the government sought both declaratory and
injunctive relief in its cross-claim against NFRC in the Western District
of Washington. Moreover, the declaratory judgment exception allows only
the "prevailing party in a declaratory judgment" to seek "further relief
in the form of damages or an injunction." Horn & Hardart Co., 843
F.2d at 549
(emphasis added). NFRC did not prevail in the Seattle litigation.
AFRC also argues that, because the government sought summary judgment
on only nine of the eleven claims in the Seattle litigation and withdrew
its motion as to the remaining two claims, these claims at least remain
undecided, and AFRC should not be barred from pursuing them here. The
government responds that it did not seek summary judgment on the two
remaining claims because there were material facts in dispute on the
claims, and again correctly points out that the doctrine of res judicata
bars a party from re-litigating all claims that were, or could have
been, resolved in the prior action. See Allen v. McCurry, 449 U.S. 90,
94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). Although the two claims may
thus have survived Judge Dwyer's declaratory ruling, NFRC did not pursue
them in the Seattle litigation.
AFRC's final argument against applying res judicata to bar its claims
here is that issue preclusion is an equitable doctrine and that it would
be inequitable to apply res judicata in the instant case. Plaintiffs
[AFRC] selected this district as the forum in which to
present its claims, and was compelled, over its
objection, to litigate some (but not all) of its
claims in the Western District of Washington in a
highly-accelerated consolidated case with limited
discovery and a less than complete administrative
record. The unique procedural avenues employed by the
Seattle Audubon court did not in fact address all of
[AFRC]'s challenges to the Northwest Forest Plan.
Pls.' Opp'n at 33 (citation omitted).
AFRC fails to understand, however, that the government's motion for
summary judgment is based on res judicata, not issue preclusion, and
unlike issue preclusion, res judicata is not subject to equitable
considerations. Moreover, even if equitable considerations were to be
taken into account, the Court finds that they weigh in the government's
favor. As the government states:
[AFRC] had the opportunity to assert all of its
challenges to the Forest Plan in the Seattle
litigation where it was a party. Instead, it engaged
in endless procedural maneuverings to evade the
Seattle court's jurisdiction. Having failed to escape
the Seattle court's judgment, [AFRC] has no equitable
or legal basis for seeking to relitigate its claims.
To the extent that any of its claims were not heard by
the Seattle court, [AFRC] has only itself to blame.
Gov't Reply at 5.