Headwaters Inc., an Oregon Nonprofit Corporation Forest Conservation Council v. U.S. Forest Service

Opinion by Judge BERZON; Concurrence by Judge GOODWIN.

ORDER

The Opinion filed on September 8, 2004, and published at 382 F.3d 1025 (9th Cir.2004), is withdrawn and superceded by the opinion filed concurrently herewith.

With the filing of the new opinion, appellants’ pending petition for rehearing en banc is DENIED as moot, without prejudice to refiling a subsequent petition for rehearing and/or rehearing en banc. See 9th Cir. G.O. 5.3(a).

*1050 OPINION

The district court held, sua sponte, that two environmental organizations who have never litigated the validity of several timber sales are precluded from doing so because counsel for other organizations, a year earlier, signed a dismissal with prejudice of a similar suit. We have in this nation a “ ‘deep-rooted historic tradition that everyone should have his own day in court,’ ” and presume, consequently, that “ ‘[a] judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings.’ ” Richards v. Jefferson County, 517 U.S. 793, 798 , 116 S.Ct. 1761 , 135 L.Ed.2d 76 (1996) (quoting Martin v. Wilks, 490 U.S. 755, 762 , 109 S.Ct. 2180 , 104…

concurring separately:

I concur in the majority opinion, but write separately to remind the district court on remand that if the factual record developed after remand shows that a party or counsel were, as suspected by the district court, in fact gaming the system to prolong unnecessary litigation, the court has discretionary remedies in the nature of costs and fees to protect the court from imposition.

399 F.3d 1047 HEADWATERS INC., an Oregon nonprofit corporation; Forest Conservation Council, Plaintiffs-Appellants, v. U.S. FOREST SERVICE, Defendant-Appellee. No. 01-35898. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 10, 2003. Filed February 23, 2005. COPYRIGHT MATERIAL OMITTED Lori J. Cooper, Williams, OR, for the appellants. Todd S. Aagaard, Attorney, United States Department of Justice, Washington, DC, for the appellee. Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, Chief District Judge, Presiding. D.C. No. CV-01-03056-HO. Before ALFRED T. GOODWIN, PROCTER HUG, JR., and MARSHA S. BERZON, Circuit Judges. 1 Opinion by Judge BERZON; Concurrence by Judge GOODWIN. ORDER 2 The Opinion filed on September 8, 2004, and published at 382 F.3d 1025 (9th Cir.2004), is withdrawn and superceded by the opinion filed concurrently herewith. 3 With the filing of the new opinion, appellants' pending petition for rehearing en banc is DENIED as moot, without prejudice to refiling a subsequent petition for rehearing and/or rehearing en banc. See 9th Cir. G.O. 5.3(a). OPINION BERZON, Circuit Judge: 4 The district court held, sua…