Alaska Forest Association v. Schafer

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALASKA FOREST ASSOCIATION, et al.,
Plaintiffs,
v. Civil Action No. 08-01951 (JDB)
THOMAS VILSACK, Secretary of the U.S.
Department of Agriculture, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs Alaska Forest Association (“AFA”) and Southern Southeast Alaska Building
Industries Association (“Building Association”) bring this action against Secretary of Agriculture
Thomas Vilsack and other employees of the United States Department of Agriculture (“USDA”)
and the United States Forest Service (“USFS”) acting in their official capacities. Plaintiffs seek
injunctive relief from a 2008 USFS Forest Plan amendment that reduced the amount of
commercial forestland in the Tongass National Forest in Alaska. Plaintiffs claim that the
procedures used and the substantive decisions made in approving the amended Forest Plan
violated the National Forest Management Act (“NFMA”), 16 U.S.C. § 1604, and the National
Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370h. Pursuant to the Administrative
Procedure Act (“APA”), 5 U.S.C. § 706(2), plaintiffs seek declaratory relief vacating the Forest
Plan amendment and requiring the USFS and USDA to amend the Forest Plan in a manner that
complies with federal law. Now before the Court is [29] defendants’ motion to dismiss
plaintiffs’ claims. For the reasons explained below, defendants’ motion will be granted.
I. Background
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The Tongass National Forest encompasses about 17 million acres and is the largest
national forest in the United States. Am. Compl. ¶ 11. In 1980, Congress passed the Alaska
National Interest Lands Conservation Act (“ANILCA”), which directed the USFS to “‘maintain
the timber supply from the Tongass National Forest’” at a rate set by statute. Am. Compl. ¶ 14
(quoting 16 U.S.C. § 539d (1988)). In 1990, Congress enacted the Tongass Timber Reform Act
(“TTRA”), which directs the Secretary of Agriculture, “‘to the extent consistent with providing
for the multiple use and sustained yield of all renewable forest resources . . . to provide a supply
of timber from the Tongass National Forest’” that meets both the annual market demand and the
market demand for “each planning cycle” for timber. Am. Compl. ¶ 15 (quoting 16 U.S.C. §
539d(a)).
The NFMA directs the USFS to revise and update its land-use plans for each of the
national forests “at least every fifteen years.” 16 U.S.C. § 1604(f)(5). In 2008, pursuant to the
NFMA, the USFS prepared a record of decision (the “Tongass Decision”) for an amendment to
the Tongass National Forest Plan. Am. Compl. ¶ 18. The Tongass Decision amended the Forest
Plan and reduced the amount of land available for commercial foresting from 2.4 million acres to
676,000 acres. Id. ¶¶ 16-20. The Tongass Decision also adopted an adaptive strategy for
managing lands for timber sale that plaintiffs claim reduces the acreage capable of supporting
financially feasible timber sales to approximately 103,000 acres. Id. ¶ 23.
The USFS’s action drew two court challenges. On September 17, 2008, the Southeast
Conference and several other Alaskan cities and municipal organizations (“Southeast
Conference”) filed suit against the Secretary of Agriculture and other USDA and USFS
defendants acting in their official capacities. Compl. ¶ 1, Se. Conference v. Vilsack, 684 F.
Supp. 2d 135 (D.D.C. 2010) (No. 08-1598) (“Se. Compl.”). The plaintiffs in that case claimed
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that the Tongass Decision substantively violated the TTRA, ANICLA, NFMA, and NEPA, and
requested injunctive relief reversing the challenged Decision. Id. ¶¶ 1, 46-55, I-VII. By the time
the Southeast Conference’s case advanced to the summary judgment stage, the plaintiffs there
had abandoned their claim that the Decision violated NEPA and focused their summary
judgment motion on their NFMA, TTRA and ANICLA claims. See Se. Conference, 684 F.
Supp. 2d at 138-39 (listing the NFMA, TTRA, and ANICLA as the three statutes at issue in
considering the parties’ cross-motions for summary judgment).
A little under two months after Southeast Conference initiated their lawsuit, the plaintiffs
in the present case filed their complaint, alleging that the USFS decision resulted in substantive
and procedural violations of the NFMA, NEPA, and TTRA. Compl. ¶¶ 25-45. Recognizing the
related issues in the two cases, the parties in a joint statement agreed that either staying the
present case or consolidating it with Southeast Conference would be appropriate, and proposed a
stay of this case on April 3, 2009. Joint Meet & Confer Statement & Request for Extension of
Time to Submit Proposed Scheduling Order [Docket Entry 7] at 2-3. Because Southeast
Conference was pending before this Court, the present case was reassigned to the undersigned
judge as a related matter under Local Rule 40.5. This Court granted the requested stay on June
16.
While the present case was stayed pending the outcome in Southeast Conference, the
defendants there questioned Southeast Conference’s standing in that case. Mem. in Reply to
Defs.’ Opp’n to Pls.’ Mot. for Partial Summ. J. & Pls.’ Opp’n to Defs.’ Mot. for Summ. J. at 1,
Se. Conference v. Vilsack, 684 F. Supp. 2d 135 (D.D.C. 2010) (No. 08-1598) (“Se. Pls.’ Mem.”).
Southeast Conference replied in June 2009 and included an affidavit, signed by the president of
AFA, stating that the AFA was a member of their organization. Id. at 5. Southeast Conference
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argued that the AFA had suffered concrete, redressable harm as a result of the Tongass Decision.
Id. This Court granted defendants’ motion for summary judgment on February 17, 2010. Se.
Conference, 684 F. Supp. 2d at 149. That decision addressed the merits of Southeast
Conference’s APA challenges to the Tongass Decision under the NFMA, TTRA, and ANICLA,
implying that Southeast Conference did have standing to bring the case without reaching the
issue.
Following this Court’s decision in Southeast Conference, the plaintiffs in the present case
filed a status report on March 29, 2010, indicating their desire to file an amended complaint and
“to resolve any preclusive effect concerns with federal defendants prior to filing an amended
pleading.” Pls.’ Status Report [Docket Entry 17] at 2. During the same period, defendants’
counsel communicated to plaintiffs’ counsel that he was “considering, and in the process of
researching, the potential preclusive effect of the Court’s judgment in Southeast Conference on
this case.” Defs’ Reply in Support of Mot. to Dismiss (“Defs.’ Reply”) [Docket Entry 33], Ex. 9
¶ 5. Defendants’ counsel mentioned that he “wanted to review the case law regarding the
definition of a ‘claim’ for the purposes of preclusion” on April 17, 2010. Id. ¶ 7.
Plaintiffs then amended their complaint. The Amended Complaint [Docket Entry 24]
claims that the USFS and USDA, by promulgating the Tongass Decision and related land
management strategy, committed substantive violations of the NFMA and procedural violations
of the NFMA and NEPA. Am. Compl. ¶¶ 26-38. Defendants subsequently moved to dismiss all
of plaintiffs’ claims.
II. Standard of Review
“[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over
the subject matter or for failure to state a cause of action, the allegations of the complaint should
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be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see
Leatherman v. Tarrant Cnty. Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993); Phillips
v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). Hence, the factual allegations must be
presumed true, and plaintiff must be given every favorable inference that may be drawn from the
allegations of fact. Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111,
1113 (D.C. Cir. 2000). However, the Court need not accept as true “a legal conclusion couched
as a factual allegation,” nor inferences that are unsupported by the facts set out in the complaint.
Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain,
478 U.S. 265, 286 (1986)).
Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court --
plaintiff here -- bears the burden of establishing that the court has jurisdiction. See US Ecology,
Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000); see also Grand Lodge of
Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (a court has an
“affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority”).
“‘[P]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a
12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge,
185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1350 (2d ed. 1987)). Additionally, a court may consider material other than the
allegations of the complaint in determining whether it has jurisdiction to hear the case, as long as
it still accepts the factual allegations in the complaint as true. See Jerome Stevens Pharms., Inc.
v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005); EEOC v. St. Francis Xavier Parochial Sch.,
117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997).
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In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court is mindful that the
Federal Rules of Civil Procedure require only that a complaint contain “‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)); accord Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). Although “detailed
factual allegations” are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide
the “grounds” of “entitle[ment] to relief,” a plaintiff must furnish “more than labels and
conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S.
at 555-56; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570); Atherton v. Dist. of Columbia Office of the Mayor, 567 F.3d 672,
681 (D.C. Cir. 2009). A complaint is plausible on its face “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. This amounts to a “two-pronged approach” under
which a court first identifies the factual allegations entitled to an assumption of truth and then
determines “whether they plausibly give rise to an entitlement to relief.” Id. at 679-80.
III. Discussion
Defendants contend that plaintiff AFA is barred from challenging the Tongass Decision
under the doctrine of res judicata. Federal Defs.’ Stmt. of Points & Auth. in Supp. of Mot. to
Dismiss (“Defs.’ Mot.”) at 12. Defendants also argue that plaintiff Building Association does
not have standing to challenge the government’s Tongass Decision. Id. at 20. Plaintiffs respond
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that AFA’s claims are not barred by res judicata, and argue in the alternative that defendants
waived their res judicata defense by allowing the Southeast Conference case to proceed to final
disposition before raising the defense in the present case.
A. Res Judicata
Res judicata bars relitigation of claims and issues that were or could have been litigated
in a prior action. See Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (“A final judgment forecloses
‘successive litigation of the very same claim, whether or not relitigation of the same claim raises
the same issues as the earlier suit.’” (quoting New Hampshire v. Maine, 532 U.S. 742, 748
(2001))). “A subsequent lawsuit is barred by [res judicata] ‘if there has been prior litigation (1)
involving the same claims or cause of action, (2) between the same parties or their privies, and
(3) there has been a final, valid judgment on the merits, (4) by a court of competent
jurisdiction.’” NRDC v. EPA, 513 F.3d 257, 260 (D.C. Cir. 2008) (quoting Smalls v. United
States, 471 F.3d 186, 192 (D.C. Cir. 2006)).
1. AFA’s Representation by Southeast Conference
Res judicata bars the parties or their privies from relitigating the same claims in multiple
suits. NRDC v. EPA, 513 F.3d at 260. Defendants claim that because AFA is a member of
Southeast Conference and because Southeast Conference specifically relied on AFA’s
membership in arguing that it had standing to challenge the Tongass Decision, the Southeast
Conference ruling bars AFA from litigating its claims.
In general, “[a] person who is not a party to an action but who is represented by a party is
bound by and entitled to the benefits of a judgment as though he were a party.” Restatement
(Second) of Judgments § 41 (1982); accord Democratic Cent. Comm. of Dist. of Columbia v.
Washington Metro Area Transit Comm’n, 842 F.2d 402, 409 (D.C. Cir. 1988). Plaintiffs resist
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the applicability of this rule, arguing that the Southeast Conference plaintiffs did not
“underst[an]d themselves to be acting as AFA’s representative in connection with AFA’s
challenge.” Pls.’ Opp’n at 10 n.4. Plaintiffs’ argument is dubious on these facts. AFA
submitted an affidavit supporting Southeast Conference's standing argument, see Pls.' Mem. at 5,
which should have alerted the Southeast Conference plaintiffs that they were representing AFA.
Even if this were not so, the representative's lack of subjective understanding about the
representation is not a recognized exception to the rule that one who is represented by another
party is bound by a judgment that also binds that party. See Restatement (Second) of Judgments
§ 42 (1982). Nor does AFA meet any of the other recognized exceptions to that rule. AFA was
aware that Southeast Conference was bringing its suit, see id. § 42(a), and, by submitting its
affidavit, stated that Southeast Conference’s claims were in its interest, see id. § 42(b), (d). AFA
has not shown that Southeast Conference was divested of representational authority at any point
during litigation, see id. § 42(c), or that Southeast Conference failed to diligently prosecute its
claims in the Southeast Conference action, see id. § 42(e). This Court therefore agrees that
Southeast Conference involved “the same parties or their privies” as the present case for the
purposes of res judicata.
2. Same Cause of Action
Defendants argue that AFA is barred from challenging the Tongass Decision under the
doctrine of res judicata because the present case involves claims that were or could have been
litigated in the Southeast Conference case challenging the same decision. Defs.’ Mot. at 12.
“Whether two cases implicate the same cause of action turns on whether they share the same
nucleus of facts.” Apotex, Inc. v. FDA, 291 F.3d 59, 66 (D.C. Cir. 2002) (internal citation and
quotation omitted). “In pursuing this inquiry, the court will consider whether the facts are
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related in time, space, origin, or motivation, whether they form a convenient trial unit, and
whether their treatment as a unit conforms to the parties’ expectations or business understanding
or usage.” Id. (internal citation and quotation omitted). “Res judicata has recently been taken to
bar claims arising from the same cause of action, even if brought under different statutes.”
Kremer v. Chem. Constr. Corp., 456 U.S. 461, 481 n.22 (1982) (citing Nash Cnty. Bd. of Educ.
v. Biltmore Co., 620 F.2d 484, 488 (4th Cir. 1980) (res judicata applies where “[i]n both cases,
the evidence will be identical and the damages recoverable and the relief available the same”)).
Plaintiffs contend that AFA’s claims are distinct from the claims Southeast Conference
advanced in its case. Pls.’ Opp’n to Defs.’ Mot. to Dismiss [Docket Entry 31] at 10 n.4; Tr. of
Mot. Hr’g (“Hr’g Tr.”) at 21-28. They note that Southeast Conference involved substantive
challenges to the Tongass Decision under the NFMA, TTRA and ANICLA, while the present
case challenges the procedures used in making the Tongass Decision under the NFMA and
NEPA, and makes a different substantive NFMA claim. Hr’g Tr. at 21-23. Plaintiffs argue that
even though both suits challenge the Tongass Decision, evaluation of the claims in each suit
involves different facts within the administrative record. Id. (relying on Albert v. Chesapeake
Bk. & Trust (In re Linton Props.), 410 B.R. 1, 12 (Bankr. D.D.C. 2009)).
The Court disagrees. In both Southeast Conference and this case, the core claim is that
the Tongass Decision is arbitrary, capricious, an abuse of discretion, and otherwise not in
accordance with the law. Compare Am. Compl. ¶¶ 29, 34, 38 with Se. Compl. ¶¶ 51, 55. Both
complaints allege procedural failures by the Forest Service in adopting a method to determine the
suitable land base for timber production in Tongass National Forest. Compare Am. Compl. ¶¶
34, 36, 37 with Se. Compl. ¶¶ 47, 53.
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Although plaintiffs are correct that the claims in this case involve challenges to different
substantive and procedural requirements than those challenged in Southeast Conference, defining
a cause of action for res judicata purposes turns on defining the claims that “might and should
have been advanced in the first litigation.” See 18 Charles Alan Wright et al., Federal Practice
and Procedure § 4406 (2d ed. 2002). Here, plaintiffs clearly “might” have pursued the claimed
violations of NFMA and NEPA in the original suit. Indeed, the initial complaint in Southeast
Conference claimed violations of the NFMA and NEPA, see Se. Compl. at 18 (“First Claim for
Relief (TTRA, NFMA, and NEPA)”), but the Southeast Conference plaintiffs chose to abandon
the NFMA and NEPA claims at the summary judgment stage. For res judicata purposes, the
claims "should" have been brought together. The NFMA and NEPA claims in the present case
turn on the same facts as the claims in Southeast Conference; both sets of claims require analysis
of whether the USFS improperly elevated environmental concerns over the concerns of the
timber industry, compare Am. Compl. ¶ 28 with Se. Compl. ¶¶ 48-49, and whether the USFS
followed proper procedure in adopting its land management strategy for the Tongass National
Forest, compare Am. Compl. ¶¶ 33, 37 with Se. Compl. ¶ 53.
Plaintiffs argue that the two sets of claims rely on different facts in the administrative
record, and cite a single bankruptcy court case to support their argument that res judicata
therefore does not apply. Hr’g Tr. at 21-23 (citing Albert, 410 B.R. at 12). In Albert, the court
held that res judicata did not apply when a bankruptcy trustee filed a complaint to seek avoidance
of a garnishment because it was executed within ninety days of a bankruptcy petition, lost the
case, and then moved to avoid the same garnishment under state law due to improper service of
process. Albert, 410 B.R. at 4. The court found that even though both causes of action relied on
the writ of garnishment, they were brought under different statutes and related to different facts
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within the writ (the date and person the writ was served on, respectively), so res judicata did not
apply. Id. at 12. To the limited extent that Albert is persuasive authority, it is distinguishable;
the trustee there brought distinct claims under state and federal law, whereas all plaintiffs here
rely on a single cause of action, the APA. Moreover, simultaneous procedural and substantive
challenges to a single agency action are common practice when litigating claims under the APA,
see, e.g., Se. Compl. (bringing procedural and substantive challenges to the Tongass Decision
under the APA); Am. Compl. (same). Bringing all claims together therefore would form a
“convenient trial unit” and conform to the parties’ expectations about how APA claims are
litigated.
This Court therefore finds that the claims in the present case share the same “nucleus of
facts” as the claims in Southeast Conference, see Apotex, Inc., 291 F.3d at 66, and relate to the
same challenged action. Hence, res judicata applies to bar this challenge to the Tongass
Decision.
3. Waiver of Res Judicata Defense
Plaintiffs assert that even if their claims are barred by res judicata, defendants waived
their opportunity to present a res judicata defense in the present action when they failed to raise it
before Southeast Conference was decided on the merits. Pls.’ Opp’n at 9-15. By not raising the
defense, plaintiffs argue, defendants implicitly consented to allow plaintiffs to split their claims
between Southeast Conference and this case. Id. at 9-10; see also Second Restatement of
Judgments § 26(1)(a) (1982) (“[T]he general rule [extinguishing split claims] does not apply . . .
[when t]he parties have agreed in terms or in effect that the plaintiff may split his claim, or the
defendant has acquiesced therein.”); id. § 26 cmt. a (“Where the plaintiff is simultaneously
maintaining separate actions based upon parts of the same claim, . . . [t]he failure of the
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defendant to object to the splitting of the plaintiff's claim is effective as an acquiescence in the
splitting of the claim.”).
Defendants respond that they first became aware that AFA was adequately represented in
Southeast Conference (and thus barred from pursuing the claims in this case) when AFA
submitted its affidavit supporting the Southeast Conference plaintiffs’ standing in that case in
June 2009. Defs.’ Reply at 6-8; see also Se. Pls.’ Mem. at 5. Because the present case was
stayed in June 2009, defendants argue, they did not need to pursue their res judicata defense in
this case until proceedings resumed. Defendants explain that after Southeast Conference was
decided in February 2010, they communicated their intent to raise a res judicata defense to
plaintiffs in March and April 2010. Defs.’ Reply at 16-19. Therefore, defendants argue, their
actions were sufficiently timely to avoid waiver of their res judicata defense.
Neither party has supported its position with case law that addresses the unique facts
before this Court. Plaintiffs cite to several cases for the proposition that if a defendant explicitly
states his desire for split claims or acquiesces through silence to splitting claims across multiple
suits, then the defendant is barred from later advancing a res judicata defense. See, e.g., Rotec
Indus., Inc. v. Mitsubishi Corp., 348 F.3d 1116, 1119 (9th Cir. 2003) (holding res judicata
defense waived when defendants were aware of two simultaneous proceedings and allowed the
first to proceed to final judgment favoring defendants before advancing defense). Defendants
contend that these precedents do not apply because they were not aware they could pursue a res
judicata defense until AFA became actively involved in Southeast Conference by supporting
plaintiffs’ organizational standing in that case, and that they had no duty to advance their defense
here while this case was stayed. Defs.’ Reply at 6-8.
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The D.C. Circuit and other federal court decisions provide little guidance for resolution
of this issue. There is one state court decision analogous to this case, Lighthouse Landings, Inc.
v. Conn. Light & Power Co., 15 A.3d 601 (Conn. 2011). There, plaintiff sued for improper
termination of its commercial lease, and defendant separately sued plaintiff for a declaratory
judgment that the lease had been properly terminated. Id. at 606-08. The court in the declaratory
judgment action ruled in favor of plaintiff and reinstated the lease. Id. at 609. Plaintiff
continued to pursue his original action for damages, and the Connecticut Supreme Court ruled
that plaintiff’s claims were barred by res judicata. Id. at 615. In so doing, the court noted that a
declaratory judgment action ordinarily has no preclusive effect on a separate pending damages
action and that the preclusive effect of a first judgment can be avoided by prejudgment
agreement of the parties. Id. at 619. But because the plaintiff altered the declaratory judgment
action by requesting equitable and monetary relief in that action “more than six weeks after the
court stayed the civil [damages] action,” the claims were not properly split between the two cases
and the declaratory judgment action had preclusive effect on plaintiff’s original action. Id.(emphasis added).
The circumstances of the present case are similar to those in Lighthouse Landings. In
that case, a party took actions that established the preclusive effect of one case while another
case was stayed. Plaintiffs, by submitting the AFA affidavit in Southeast Conference while the
present case was stayed, created a situation where defendants became aware that they could
advance a res judicata defense against AFA in this action. Defendants timely pursued their
defense as soon as the stay was lifted and proceedings resumed in this case. There was no
agreement, express or implied, by defendants to allow AFA to split its claims between Southeast
Conference and the present case. Therefore, there is no justification for estopping defendants
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from advancing their res judicata defense. AFA had the opportunity to litigate its claims in the
Southeast Conference case, either by virtue of organizational representation by Southeast
Conference or by consolidating the present case with that case. Absent any agreement on
splitting claims, AFA does not get a second opportunity to bring claims that should have been
brought earlier.
*****
Defendants have shown that all elements of their res judicata defense are met: AFA was
properly represented by Southeast Conference in the Southeast Conference case; AFA might and
should have brought the claims in the present case in the earlier case because the two sets of
claims relate to the same “nucleus of facts”; and this Court issued a final decision on the merits
in Southeast Conference that precluded future litigation on the same claims. Plaintiffs’
contention that defendants waived their res judicata defense is unavailing; they first received
sufficient notice that AFA was adequately represented by Southeast Conference for res judicata
purposes while this case was stayed and then timely raised their defense after proceedings
resumed. Hence, this Court finds that plaintiff AFA’s claims are barred by res judicata and will
dismiss them from the suit.
B. Standing of Building Association
Because AFA is barred from pursuing its claims under the doctrine of res judicata,
plaintiff Building Association is the only remaining plaintiff in this case. Defendants argue, and
plaintiffs acknowledge, see Hr’g Tr. at 40-41, that Building Association, absent AFA’s presence
as a plaintiff, does not have standing to challenge the Tongass Decision. Defs.’ Mot. at 19-20.
Building Association claims that its members use and enjoy the Tongass National Forest for
aesthetic and other recreational purposes, and claims that the Tongass Decision will cause injury
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to those interests. Am. Compl. ¶ 6. But these interests are not germane to Building
Association’s organizational purpose, which is to promote “the policies that make housing and
home ownership a priority in Alaska,” id. ¶ 5, so Building Association cannot bring suit on
behalf of its members for this purpose. See Hunt v. Wash. State Apple Adver. Comm’n, 432
U.S. 333, 343 (1977). Because Building Association has not claimed that its members are
injured in a manner germane to its organizational purpose, it has no cognizable injury from the
Tongass Decision. Accordingly, Building Association’s claims must be dismissed.
IV. Conclusion
For the reasons explained above, the Court will grant defendants’ motion to dismiss. A
separate order will accompany this opinion.
/s/
JOHN D. BATES
United States District Judge
Dated: August 10, 2012
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