Thursday, February 09, 2012

Save the Peaks Coalition v. USFS (9th Cir. - Feb. 9, 2012)

Judge Milan Smith begins this opinion with the following:  "This case represents a gross abuse of the judicial process."  It's similarly vitriolic throughout.  So if for that reason alone, it's worth a read.

I'll leave the merits -- it's an environmental case -- to Judge Smith.  Suffice it to say that he's not happy with the litigation that the Save the Peaks Coalition filed to stop artificial snowmaking on a ski resort in Arizona.

The one thing I'll say is that even though Judge Smith mentions the merits of res judicata only late in the opinion, in a single sentence in footnote four, that's really the proper focus of his doctrinal complaint.  He's not happy about successive litigation, especially when he thinks it gets in the way of jobs (pointedly noting that the ski resort "supports approximately 200 full-time jobs and $12.08 million in economic output"), and is not shy about saying so.  But it's not the laches or prejudice rules -- the ones at issue in the case -- that are the genesis of this problem.  It's the limited scope of nonparty preclusion (i.e., issue and claim preclusion).

So I'd have liked to see him talk about this more other than by dropping an unexplained footnote that says that nonparty preclusion doesn't exist here.  If everything he says is right, it seems like this would be a pretty strong case of virtual representation (same attorneys, involved parties, etc.), in which case we can easily get rid of the lawsuit on those grounds.  If virtual representation doesn't apply, I'd love to know why not:  are there additional facts that cut against the strength of his objections (and the potential applicability of virtual representation) that he's not revealing, and if so, what are they?  Moreover, given his strong language about the injustice here -- which I can understand -- what's the solution?  Res judicata is a common law doctrine for the most part.  Surely we can modify it if it indeed creates "a gross abuse of the judicial process," right?  What are Judge Smith's suggested changes?  And he's on the Ninth Circuit, with a sympathetic panel.  Why not go ahead and change the principles to which you object?  Or at least explain the reasons you can't do so and the countervailing rationales that support those principles?  I'd sincerely love to hear more.  Especially since I (and, I'm sure, others) could potentially get on board for a change in these principles if a persuasive case was made on the merits.

I think that might be more persuasive than an opinion that some people might well read as saying simply:  "Those damn environmentalists! Always getting in the way of progress!"  A sentiment that lots of people might agree with but with which lots of other people might not concur.  For those who are in the middle, or who care about the actual doctrine rather than the particular positions of the parties, I think an opinion that talked more about the underlying principles that gave rise to the problem that Judge Smith perceives might be more influential.  As well as potentially more persuasive.

P.S. - By a twist of fate, Judge Smith's opinion was also issued on the same day as this published Ninth Circuit opinion.  Which was also a case brought against the US Forest Service, was also in Arizona, was also somewhat strongly worded (though far less so), which also seems to have involved successive litigation and application of res judicata principles (at least according to footnote two), and which reversed the dismissal of plaintiff's claims.  I wonder what light that sheds, if any, on the propriety of res judicata as applied to these types of claims.