Board of Natural Resources of State of Wash. v. Brown, 92-35004

• Decision Date: 04 May 1993
• Docket Number: No. 92-35004,92-35004
• Citation: 992 F.2d 937
• Parties: , 23 Envtl. L. Rep. 20,848 BOARD OF NATURAL RESOURCES OF the STATE OF WASHINGTON; and Washington State Board of Education, Plaintiffs-Appellants, v. Ronald H. BROWN, * Secretary of Commerce of the USA; and the United States of America, Defendants-Appellees. COUNTY OF SKAMANIA; County of Cowlitz; County of Jefferson; County of Lewis; County of Pacific; Edward McLarney; County of Whatcom; and County of Skagit, Plaintiffs-Appellants, v. Ronald H. BROWN, * Secretary of Commerce of the United States of America; and the United States of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 937

992 F.2d 937

61 USLW 2687, 23 Envtl. L. Rep. 20,848

BOARD OF NATURAL RESOURCES OF the STATE OF WASHINGTON; and Washington State Board of Education, Plaintiffs-Appellants, v. Ronald H. BROWN, ^* Secretary of Commerce of

the USA; and the United States of America,

Defendants-Appellees.

COUNTY OF SKAMANIA; County of Cowlitz; County of

Jefferson; County of Lewis; County of Pacific;

Edward McLarney; County of Whatcom; and County of Skagit, Plaintiffs-Appellants, v. Ronald H. BROWN, ^* Secretary of

Commerce of the United States of America; and the

United States of America, Defendants-Appellees.

No. 92-35004.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 9, 1992.

Decided May 4, 1993.

John W. Hough, Deputy Atty. Gen., State of Washington, Olympia, WA, for plaintiffs-appellants Bd. of Natural Resources, Washington State Bd. of Educ.

Daniel B. Ritter, Davis Wright Tremaine, Seattle, WA, for plaintiffs-appellants County appellants.

Jeffrey P. Kehne, Environmental & Natural Resources Div., Dept. of Justice, Washington, DC, for defendants-appellees.

Lorraine Wilson, Sp. Asst. Atty. Gen., Olympia, WA, for amicus curiae Washington State School Directors' Ass'n.

Appeal from the United States District Court for the Western District of Washington, John C. Coughenour, District Judge, Presiding.

Before: WALLACE, Chief Judge, and WRIGHT and LEAVY, Circuit Judges.

WALLACE, Chief Judge:

This appeal requires us to assess the validity and constitutionality of the Forest Resources Conservation and Shortage Relief Act, 16 U.S.C. §§ 620-620j (Act). Several Washington counties and the Washington State Boards of Education and Natural Resources (Boards) sought a declaratory judgment that the Act contravenes the Tenth Amendment and the due process clause of the Fifth Amendment, and that it constitutes a breach of the obligation of the United States to act in the best interests of Washington's federal land-grant trusts. The district court rejected each of their claims and granted summary judgment to the government. The district court exercised jurisdiction pursuant to 5 U.S.C. § 702 and 28 U.S.C. § 1331. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand.

I

In 1990, Congress adopted the Act, which restricts in varying degrees the export of unprocessed timber harvested from federal and state public lands in the western continental United States. The Act is designed both to conserve timber and to increase the supply of timber to domestic lumber mills. 16 U.S.C. § 620(b). Although the Act significantly curtails the export of timber from public lands, it does not restrict the export of timber harvested from privately owned land.

The Act consists of two major parts. The first part continues the federal government's long-standing policy of restricting the export of timber harvested from federal land. See 16 U.S.C. § 620(b)(4). The Act prohibits the export of all unprocessed timber from federal lands west of the 100th meridian and within the continental United States, except for timber the "Secretary concerned determines to be surplus to domestic manufacturing needs." 16 U.S.C. § 620a(b)(1). The second part restricts the export of timber harvested from state public lands west of the 100th meridian and within the continental United States. 16 U.S.C. § 620c.

States are divided into two categories for purposes of the export restrictions. The Act prohibits all exports in those states whose annual sales volume of timber amounts to 400 million board feet or less. 16 U.S.C. § 620c(b)(1). In those states whose annual sales volume exceeds that amount, currently only Washington, the Act initially bans from export 75 percent of the annual sales volume. 16 U.S.C. § 620c(b)(2). The Act provides for a scheduled increase in that percentage, and it also allows the Secretary of Commerce (Secretary) to increase the amount whenever he or she finds certain conditions warrant an increase. 16 U.S.C. § 620c(b)(2)-(c).

As part of its regulatory scheme, the Act contains provisions requiring states to issue regulations implementing the export bans. 16 U.S.C. § 620c(d). One of these provisions applies to all states affected by the Act. 16 U.S.C. § 620c(d)(2). One currently applies, by virtue of Washington's timber sales volume, only to Washington. 16 U.S.C. § 620c(d)(3)(A). Another currently applies to all other states because of their timber sales volumes. 16 U.S.C. § 620c(d)(3)(B).

On October 24, 1990, the Secretary, pursuant to the Act, issued an order implementing the export ban. The Secretary has since issued two additional orders. The first, issued on December 29, 1991, continued the 75 percent export ban on Washington's timber. The second, issued on October 29, 1992, increased that ban to 100 percent. The October 24, 1990, and December 29, 1991, orders, like the Act, direct the export ban to be implemented pursuant to state regulations.

The State of Washington owns the land involved in this appeal. Some of it is land granted by the federal government to Washington when Washington joined the Union in 1889. Pursuant to the terms of Washington's Enabling Act, this land is to be held in trust by Washington for the support of various public institutions, including state public schools, colleges, and universities. The State Board of Natural Resources is responsible for managing the trust lands, and the State Board of Education is responsible for allotting to school districts monies earned from those trust lands held for their benefit. Some of the land affected by the Act is held by Washington in trust for the benefit of various counties, seven of which are parties to this action.

The Act affects all of the trust lands by reducing significantly the income generated from the sale of timber harvested from the land. Typically, a majority of the timber harvested from the trust lands has been exported and sold overseas, where it commands a higher price than it does domestically. The record indicates that over the next decade, the export ban imposed by the Act will result in a loss to the trusts of over $500 million.

Acting on behalf of the State in its capacity as trustee of the trust lands, the Boards filed an action in the district court seeking a declaratory judgment that the Act and related orders of the Secretary are invalid and unconstitutional. The Boards argued that the Act violates the equal protection guarantee of the due process clause of the Fifth Amendment and the United States's obligations to the land-grant trusts. The Counties and Edward McLarney, a county resident, taxpayer and county commissioner, (collectively, Counties), also brought suit seeking declaratory judgment. They, too, challenged the Act on Fifth Amendment grounds, and also claimed that the Act violates the Tenth Amendment. The cases were consolidated in the district court, and all of the parties moved for summary judgment. The district court granted the government's motion, and this joint appeal, by the Counties and Boards, followed.

The district court's summary judgment is reviewed de novo. Federal Deposit Ins. Corp. v. O'Melveny & Meyers, 969 F.2d 744, 747 (9th Cir.1992). Our review is identical to that of the district court under Federal Rule of Civil Procedure 56(c): viewing the evidence in the light most favorable to the nonmoving parties, we must "determine whether there are any genuine issues of material fact for trial, and whether the district court correctly applied the relevant substantive law." Id.

II

The Counties and Boards charge that the Act violates the equal protection guarantee of the Fifth Amendment. Before reaching the merits of their contention, we must first address the government's argument that none of plaintiff-appellants have standing to raise this issue. There are three distinct plaintiff-appellants: the Boards, the affected Counties, and McLarney. If any one of these three has standing, we may reach the merits of the equal protection argument without considering whether the other two also have standing. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264 & n. 9, 97 S.Ct. 555, 562 & n. 9, 50 L.Ed.2d 450 (1977) (Arlington Heights ); Guam Soc'y of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366, 1369 (9th Cir.) (Guam ), cert. denied, --- U.S. ----, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992).

The question as it regards the Boards is not actually whether they have standing, but whether they may be considered "person[s]" within the meaning of the Fifth Amendment. States as states clearly are not persons for Fifth Amendment purposes. South Carolina v. Katzenbach, 383 U.S. 301, 323-24, 86 S.Ct. 803, 815-16, 15 L.Ed.2d 769 (1966). Here, however, the Boards are suing in their capacity as trustees for the federal land-grant trusts and on behalf of the Washington school districts which receive funds from the trusts. Federal Rule of Civil Procedure 17(a) permits trustees to sue on behalf of trusts. See C.E. Pope Equity Trust v. United States, 818 F.2d 696, 698 (9th Cir.1987) (citing Rule 17(a)). Washington state law, in turn, authorizes the Board of Natural Resources to sue on behalf of the trusts. See Wash.Rev.Code § 79.01.736.

The dispositive question, therefore, is whether some of the beneficiaries of the trusts--the school districts--are Fifth Amendment "persons." This question has not been addressed in this circuit. The district court concluded that school districts are persons based on Papasan v. Allain, 478 U.S. 265, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (Papasan ). That case, however, did not involve school districts per se; rather, school officials and schoolchildren filed a Fourteenth Amendment equal protection claim against state officials. Id. at 267, 106 S.Ct. at 2933. However, another Supreme Court case did involve an equal protection claim brought by a school district. Washington v. Seattle School...