City of Tenakee Springs v. Clough

Decision Date18 June 1990
Docket NumberNo. J86-024 Civil.,J86-024 Civil.
Citation750 F. Supp. 1406
PartiesCITY OF TENAKEE SPRINGS, Southeast Alaska Conservation Council, the Sierra Club, the Wilderness Society, Diane Ziel, Dale Ziel, Rudolf Ziel, Molly Kemp, Robert Parish, John M. White, John C. Wisenbaugh, Tobin Rubke, Janice J. Eagle, Glen Lockhart, T.J. Clark, Samuel E. McBeen, Joan M. McBeen, Robert A. Pegues, Lonnie Anderson, Mike Jackson, Samuel Jackson, Thomas Jackson, Norman Jackson, Marvin Kadake, the Organized Village of Kake, Kake Tribal Corporation, Angoon Community Association, and Donald Frank, Plaintiffs, v. Helen CLOUGH, District Ranger, Sitka Ranger District, Tongass National Forest, Joseph A. Chiarella, District Ranger, Hoonah Ranger District, Tongass National Forest, Gary Morrison, Forest Supervisor, Chattham Area, Tongass National Forest, Ron Humphrey, Forest Supervisor, Stikine Area, Tongass National Forest, Michael A. Barton, Regional Forester, Alaska Region, F. Dale Robertson, Chief of the United States Forest Service, Clayton Yeutter, Secretary of the United States Department of Agriculture, United States Forest Service, United States Department of Agriculture, Defendants, and Alaska Pulp Corporation, an Alaska corporation, and Whitestone Logging, Inc., Intervenors-Defendants. Sam HANLON, Sr., Individually and on behalf of the Wooshikitaan Clan, Richard Sheakley, Sr., Individually and as Chief of the T'Addeintaan Clan, Victor Bean, Richard Bean, Jr., Ernestine Hanlon, George Westman, and Douglas Glessing, Plaintiffs, v. Michael BARTON, in his official capacity as Regional Forester for the Alaska Region, Dale Robertson, in his official capacity as Chief of the United States Forest Service, Clayton Yeutter, in his official capacity as Secretary of Agriculture, and the United States Forest Service, an agency within the Department of Agriculture, Defendants, and Alaska Pulp Corporation, Intervenor-Defendant.
CourtU.S. District Court — District of Alaska

COPYRIGHT MATERIAL OMITTED

Eric P. Jorgensen, Thomas S. Waldo, Sierra Club Legal Defense Fund, and Southeast Alaska Conservation Council, Inc., Steven E. Kulick, Juneau, Alaska, for Tenakee plaintiffs.

Vance A. Sanders, Mark Regan, Juneau, Alaska, and Carol Daniel, Joseph Johnson, Alaska Legal Services, Anchorage, Alaska, for Hanlon plaintiffs.

Bruce M. Landon, Land & Natural Resources Div., Dept. of Justice, Anchorage, Alaska, for defendants.

James F. Clark, Mary A. Nordale, Robertson, Monagle & Eastaugh, Juneau, Alaska, for intervenors-defendants.

MEMORANDUM AND ORDER

VON DER HEYDT, District Judge.

I. INTRODUCTION.

THIS CAUSE comes before the court on the following motions filed in City of Tenakee Springs v. Clough (No. J86-024 Civ.):1 the motion to amend complaint filed January 8, 1990 (Docket No. 144) by plaintiffs City of Tenakee Springs et al.; plaintiffs' motion for leave to file a second amended complaint filed February 2, 1990 (Docket No. 153); the motion for partial dismissal filed March 7, 1990 (Docket No. 171) by defendants United States Forest Service et al.; the Forest Service's motion to strike exhibits filed February 21, 1990 (Docket No. 163); the motion for preliminary injunction inadvertently lodged with plaintiffs' rejected motion to file overlength brief filed January 8, 1990 (Docket No. 145);2 and plaintiffs' supplemental motion for preliminary injunction filed February 2, 1990 (Docket No. 154). Plaintiffs' claims fall within the court's federal question jurisdiction. 28 U.S.C. § 1331. For the reasons set forth below, the parties' motions are denied, except for plaintiffs' motions to amend complaint, which are granted, and the Forest Service's motion to strike exhibits, which is granted in part.

II. BACKGROUND.

In 1956, the Forest Service and Alaska Lumber and Pulp, now intervenor-defendant Alaska Pulp Company ("APC"), entered into a long-term timber sale contract ("Contract") for logging over a fifty-year period — 1961 to 2011 — in an area in the Tongass National Forest in southeastern Alaska which includes portions of Baranof, Chichagof, Kuiu, and associated islands. APC Long-Term Timber Sale Contract Final Supplement to the Environmental Impact Statements for the 1981-86 and 1986-90 Operating Periods ("FSEIS"), ch. 1-1. Since 1971, the Service has prepared operating plans for successive five-year periods, supported by environmental impact statements required under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. Id.

Plaintiffs, a municipality and organizations with resource interests in the sale area, earlier in this litigation challenged the FEIS prepared by the Forest Service for the 1981-86 Operating Period. Before the court decided the merits of those claims, the Service promulgated an EIS and Record of Decision ("ROD") for the 1986-90 period, which plaintiffs appealed to the agency. Subsequently, on June 26, 1987 (Docket No. 75), the court entered its Memorandum and Order identifying deficiencies in the 1981-86 EIS. The parties then reached an interim settlement. Under the settlement, the Forest Service agreed to prepare a Supplemental Environmental Impact Statement ("SEIS") curing the deficiencies in the 1981 FEIS and addressing concerns regarding the 1986 FEIS raised in this and other litigation. The Forest Service issued the FSEIS and ROD for 1986-90 on November 16, 1989, after which the instant motions were filed.

III. PLAINTIFFS' MOTIONS TO AMEND COMPLAINT.

Plaintiffs in their motion to amend complaint (Docket No. 144) seek to add new claims to those raised in their original complaint filed September 29, 1986. Plaintiffs in their motion for leave to file a second amended complaint (Docket No. 153) seek to join new plaintiffs in the litigation. The Forest Service and APC partially oppose plaintiffs' first amended complaint, arguing that plaintiffs may not at this stage of the litigation add claims that could have been, but were not, raised initially. The defendants also oppose plaintiffs' second amended complaint, arguing that plaintiffs may not now add new plaintiffs to cure a defect in subject-matter jurisdiction. For the reasons set forth below, the court finds that plaintiffs' motion to amend complaint and motion for leave to file a second amended complaint are well founded.

A. Amending Pleadings under Fed.R. Civ.P. 15(a).

Federal Rule of Civil Procedure 15(a) provides in relevant part that "a party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served.... Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party...." Where court approval is required, "leave to amend lies `within the sound discretion of the trial court.' ... In exercising its discretion `a court must be guided by the underlying purpose of Rule 15—to facilitate decision on the merits rather than on the pleadings or technicalities.'" DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185-86 (9th Cir. 1987) (citations omitted). See also Foman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962).

Rule 15(a) further provides that "leave shall be freely given when justice so requires," and the Supreme Court has admonished that "this mandate is to be heeded." Foman, 371 U.S. at 182, 83 S.Ct. at 230. This rule favoring amendments to pleadings should be applied with "extreme liberality." DCD Programs, 833 F.2d at 186 (citations omitted). "Liberality in granting leave to amend is not dependent on whether the amendment will add causes of action or parties." Id. In determining whether amendment is permissible, the relevant factors include "the presence or absence of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party and futility of the proposed amendment." Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir.1989).

B. New Claims.

The Forest Service first contends that paragraphs 59 and 60 of plaintiffs' proposed first amended complaint "seek to raise NEPA issues which could have been, but were not raised in the original litigation."3 Partial opposition (Docket No. 158) at 6. The Service notes that it already has undertaken and completed extensive supplementation of the 1981-86 EIS in response to plaintiffs' original claims, and argues that success on plaintiffs' newly raised claims will entail substantial duplication of effort and delay of operations. According to the Service, permitting plaintiffs to raise these preexisting claims by amendment at this stage of the litigation would constitute undue delay and would cause the agency undue prejudice.4

The court agrees that plaintiffs may not now raise challenges to the 1981-86 EIS and ROD that might have been raised in the original complaint; such would constitute undue delay to the prejudice of the Forest Service. See Save Lake Washington v. Frank, 641 F.2d 1330, 1339-40 (9th Cir.1981) (amendment to conform to issues actually tried under Fed.R.Civ.P. 15(b)). However, plaintiffs do not seek to raise such challenges here. After the Service agreed to prepare the SEIS, the Service dismissed plaintiffs' administrative appeal of the 1986-90 EIS and ROD as moot, stating that "the final SEIS should adequately address your concerns and respond to the merits of your appeal of the 1986-90 EIS and ROD." Plaintiffs' reply (Docket No. 167), ex. 2 at 2. Plaintiffs' proposed claims challenge the Final SEIS insofar as it pertains to 1986-90 EIS and ROD, and thus could not possibly have been raised in the original complaint.5 Accordingly, plaintiffs' motion to amend complaint is deemed well taken.

C. New Plaintiffs.

Defendants next contend that plaintiffs may not amend their complaint to add as plaintiffs various individuals and organizations claiming subsistence interests affected by the Forest Service's action. Defendants argue that this court earlier ruled that all of the original plaintiffs in...

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