Limiting Virtual Representation in Headwaters Inc. v. United States Forest Service: Lost (Opportunity) in the Oregon Woods?

Evans, Laura
August 2006
Ecology Law Quarterly;2006, Vol. 33 Issue 3, p725
Academic Journal
In Headwaters Inc. v. United States Forest Service. the Ninth Circuit reversed a lower court finding of claim preclusion due to virtual representation of the plaintiffs in a prior case, thus allowing a citizen suit challenging the Forest Service's decision to allow logging in national forests in Oregon and California to advance. Although this decision appears to promote environmental interests, analysis of the case reveals an important negative impact on civil procedure doctrine. The Ninth Circuit interpreted Supreme Court precedent broadly to reject preclusion by virtual representation, furthering the implicit policy of allowing every person to have a "day in court." The court supported its policy-based decision with a seemingly straightforward doctrinal analysis, although an alternative result founded in legal theory and precedent was available. In so doing, the court missed an opportunity to identity a public rights exception in the determination of adequate representation under preclusion doctrine based on the significant difference between conventional cases that focus on individual interests and citizen suits that consider effects on public interests. Citizen suits, such as Headwaters' challenge to the Forest Service's decision-making process under the National Environmental Policy Act. National Forest Management Act, and the Administrative Procedures Act, usually involve disputes over public rights or public goods that affect communities as a whole. Had the court chosen, instead, to outline the parameters for the proper application of preclusion by virtual representation in a citizen suit, it could have advanced the judicial goals of efficiency and finality, while balancing and protecting the interests of the courts, the parties, and the public. Instead, the Ninth Circuit expressly declined the opportunity to expand virtual representation theory to include a presumption of adequate representation where public rather than private rights are at stake. This Note argues that by choosing a cautious approach, the court missed an opportunity to acknowledge the unique aspects of statutory citizen suits in environmental litigation, and to open the door for change in this area of civil procedure. This Note proposes an expansion in preclusion doctrine, to extend the application of virtual representation in cases involving public rights or goods, potentially balanced by a corresponding reduction in the harm requirement for standing in such cases.


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