Unpublished Disposition, 894 F.2d 409 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 894 F.2d 409 (9th Cir. 1990)

CITIZENS TASK FORCE ON TIMBER SALES REVIEW, Plaintiff-Appellant,v.UNITED STATES FOREST SERVICE, James F. Torrence, Esq.,Defendants-Appellees.

No. 87-3505.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 31, 1989.Decided Jan. 23, 1990.

Before EUGENE A. WRIGHT, TANG and FERNANDEZ, Circuit Judges.


MEMORANDUM* 

Citizens Task Force on Timber Sale Review ("Citizens") appeals the district court's dismissal after trial of its claims against the United States Forest Service ("USFS"). The district court ruled that when USFS decided not to prepare a supplemental environmental assessment of two timber areas, it did not violate the National Environmental Policy Act ("NEPA") or the implementing regulations promulgated by the Council on Environmental Quality nor did USFS violate the Federal Timber Contract Payment Modification Act ("FTCPMA"). The district court also ruled that Citizens could not administratively appeal USFS' offer of the two timber areas for resale because Citizens had untimely filed its notice of administrative appeal.

USFS filed a motion to dismiss this appeal as moot. Citizens responded with a motion for summary reversal. Both motions were assigned to this panel for decision.

We agree with USFS that the appeal should be dismissed as moot.

FACTS

In 1978 and 1979, USFS approved the sale of two areas of timber located in the Willamette National Forest. The timber areas are known as "Sad Traverse Timber Sale" and "Duck Soup Timber Sale." Both areas were purchased by timber companies, however, neither company harvested the timber from its respective area. The areas were returned to USFS under the Federal Timber Contract Payment Modification Act. That Act allows timber purchasers to return unharvested land to the United States government. The government may then offer the land for resale.

In 1986, USFS decided to resell Sad Traverse and Duck Soup. Prior to the sale, Citizens filed an administrative appeal claiming that the proposed sales violated NEPA and its implementing regulations and that the sales violated the FTCPMA. USFS dismissed the appeal as untimely. USFS then sold both areas to local timber companies.

Citizens then filed this action. Citizens sought to preserve the old growth timber stands in Sad Traverse and Duck Soup. Old growth timber stands have their own special ecosystems. Among other things, they serve as habitat for the northern spotted owl. The district court initially granted Citizens an injunction to prohibit the timber companies from harvesting any timber. However, when the trial concluded in a judgment for USFS, the court lifted the injunction. Both timber companies went ahead with the harvesting of timber and Citizens did not seek a stay pending appeal. As of March 1988, all of the timber had been harvested from both Sad Traverse and Duck Soup. The only remaining activity at either site as of November 1988 was some minor clean-up at Duck Soup, which has now been completed.1  As a result, USFS now argues that this appeal is moot because this court cannot grant any effective relief that would bring back the timber to either area.

DISCUSSION

A case is moot if the reviewing court can no longer grant effective relief. United States v. Oregon, 718 F.2d 299, 302 (9th Cir. 1983). Here, we no longer have the ability to grant effective relief to Citizens. The thrust of Citizens' suit was to prevent the harvesting of old growth timber at both Sad Traverse and Duck Soup. However, the timber has long since been harvested from both areas and we have no power, judicial or otherwise, to bring back those forest areas.2 

Citizens tries to avoid the mootness doctrine by claiming that declaratory relief would still be an effective remedy in this case. It is true that under certain circumstances a court may award declaratory relief even though the issues in the case may have been resolved by some other means. See, e.g., Greater Los Angeles Council on Deafness v. Zolin, 812 F.2d 1103 (9th Cir. 1987) (even though other relief not available, declaratory judgment might be appropriate to notify public of the rights of the handicapped); Bilbrey v. Brown, 738 F.2d 1462, 1470-71 (9th Cir. 1984) (plaintiffs denied injunction but declaratory relief appropriate to educate public as to the scope of a student's fourth amendment rights.) However, a court should not use declaratory judgments for the mere purpose of announcing legal rules of general applicability. See United States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985) (en banc). While judicial opinions do educate people about their legal rights, that rationale should not be used to justify judicial prolegomena that, of necessity, lead to no practical resolution of a dispute before the court.

Nor does a request for declaratory relief always survive if a case becomes moot. If the controversy is not sufficiently immediate or real then a court should not issue a declaratory judgment. Enrico's Inc. v. Rice, 730 F.2d 1250, 1254-55 (9th Cir. 1984) (declaratory relief inappropriate in case where state voluntarily agrees not to enforce a statute and state court has already held that statute is unconstitutional.)

Citizens has presented insufficient evidence that this is an appropriate case for declaratory relief. There are no facts that support Citizens' argument that USFS has an unwritten policy never to review current scientific information about old growth timber areas.3  There do not appear to be any other pending suits that would be completely resolved if we were to declare that USFS should have prepared a new environmental assessment plan. Moreover, if we issue a declaratory judgment in this case we would intrude on USFS' ability to first review its own conduct via an administrative appeals process. Given the above facts, we find that Citizens' request for declaratory relief may not be maintained.

Finally, we reject Citizens' arguments that its suit survives the mootness doctrine because it concerns the type of harm which is "capable of repetition, yet evading review." Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S. Ct. 279, 283, 55 L. Ed. 310 (1911); United States v. Oregon, 718 F.2d at 302. We assume, without deciding, that the action challenged is capable of repetition. However, the "evading review" prong is not satisfied. While it is true that USFS might again resell timber land without first preparing the proper environmental assessment, there is nothing to suggest that Citizens, or some other interested group, would not be able to have that action timely reviewed. E.g., Headwaters, Inc. v. Bureau of Land Management, No. 88-3825, slip op. at 399 (9th Cir. Jan. 11, 1990) (future inappropriate timber sales possible but could be timely reviewed); American Horse Protection Ass'n v. Watt, 679 F.2d 150 (9th Cir. 1982) (future wild horse roundup possible but review available because party would be notified of any agency action.)

In any future case, Citizens would be able to seek an administrative review and stay of USFS decisions to resell timber. See 36 C.F.R. Sec. 211.18. Furthermore, Citizens may also ultimately avail itself of the courts and seek temporary injunctive relief during the course of the judicial review.4  Citizens will have sufficient time in which to seek review of any future USFS action. Therefore, this case does not present an exception to the mootness doctrine.

This appeal is DISMISSED as moot. We vacate the district court's opinion below and remand to the district court so that the case may be dismissed. See Bowen v. Kizer, 485 U.S. 386, 108 S. Ct. 1200, 99 L. Ed. 2d 402 (1988); Kitlutsisti v. ARCO Alaska, Inc., 782 F.2d 800 (9th Cir. 1986). In light of our decision, we also deny Citizens' motion for summary reversal and its request for attorneys' fees under 28 U.S.C. § 2412(b).

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Citizens claims that this information is not properly before us. Citizens argues that the affidavits of USFS are hearsay and do not meet the business records exception. See Fed.R.Evid. 803(6). Citizens' conclusion is in error. The affidavits are sufficient to meet the public records exception. Fed.R.Evid. 803(8)

 2

Citizens now requests injunctive relief concerning the nature of clean-up and replanting activities. Appellant's Supplemental Response at 3-4. However, Citizens did not request that relief in its complaint, nor did the district judge seem to be aware of that request when he wrote his thoughtful opinion. Furthermore, we find no such request in the briefs written for this appeal. The theory was simply tossed out during oral argument and in an affidavit filed on the day of that argument. We decline to permit Citizens to shift direction at this late stage. If Citizens had that form of injunctive relief in mind, we deem that issue waived

 3

We note that at oral argument USFS represented to this court that, in fact, there is no such policy

 4

Citizens did not even ask this court for that relief pending the processing of this appeal