FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HELLS CANYON PRESERVATION 

COUNCIL, an Oregon non-profit

corporation, No. 03-35579 Plaintiff-Appellant,

D.C. No.

v.  CV-02-01138-FR

UNITED STATES FOREST SERVICE, an OPINION agency of the United States

Department of Agriculture,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Oregon

Helen J. Frye, District Judge, Presiding

Argued and Submitted

March 10, 2005—Portland, Oregon

Filed April 5, 2005

Before: Stephen Reinhardt, Marsha S. Berzon, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Berzon

3995
COUNSEL

William H. Sherlock, Hutchinson, Cox, Coons & DuPriest,

P.C., Eugene, Oregon, and Brett Brownscombe, Hells Canyon

Preservation Council, La Grande, Oregon, for the plaintiffappellant. 

Michael W. Mosman, United States Attorney, and Jeffrey K.

Handy, Assistant United States Attorney, District of Oregon,

Portland, Oregon, Thomas L. Sansonetti, Assistant Attorney

General, and James Kilborn, Todd S. Aagard, Clay Samford,

and Katherine W. Hazard, Environmental & Natural

Resources Division, United States Department of Justice,

Washington, D.C., for the defendant-appellee. 

OPINION

BERZON, Circuit Judge: 

When a party withdraws one of its claims before the trial

court enters judgment and the action is subsequently dis3998 HELLS CANYON v. U.S. FOREST SERVICE
missed on the merits, does the trial court’s failure to indicate

that the withdrawn claim was dismissed without prejudice

necessarily render its decision a “final judgment on the merits” as to that claim? Because we answer this question in the

negative, we reverse the district court’s dismissal of this suit

on res judicata grounds and remand for further proceedings.

I

The Hells Canyon National Recreation Area (HCNRA),

located on Oregon’s border with Idaho, was established by

Congress in 1975 pursuant to the Hells Canyon National Recreation Area Act, Pub. L. No. 94-199, 89 Stat. 1117 (1975),

16 U.S.C. §§ 460gg et seq. The HCNRA includes the “Hells

Canyon Wilderness,” which is defined as the area “depicted

on the map entitled ‘Hells Canyon National Recreation Area’

dated May 1978,[1] which shall be on file and available for

public inspection in the officer of the Chief, Forest Service,

United States Department of Agriculture.” 16 U.S.C.

§ 460gg(b). The Hells Canyon Wilderness is governed by the

HCNRA Act or the Wilderness Act, 16 U.S.C. §§ 1131-36,

whichever is more restrictive. See 16 U.S.C. § 460gg-1(b).

One of the Wilderness Act’s restrictions bars the use of

motorized vehicles within designated wilderness areas “except as necessary to meet minimum requirements for the

administration of the area.” Id. § 1133(c). 

At issue in this case is the Lord Flat Trail, a fifteen-mile

man-made motorized path on the rim of Hells Canyon. The

Trail was initially created in 1960 as a defense against a fire.

Since that time, motorized use of the Trail has steadily

increased. 

In 1989, the U.S. Forest Service discovered that a 1.5-mile

1The original Act referred to a map dated “September 1975.” Congress

replaced the 1975 map in 1978. See National Parks and Recreation Act of

1978, Pub. L. No. 95-625, § 607, 92 Stat. 3467, 3520. 

HELLS CANYON v. U.S. FOREST SERVICE 3999
stretch of the Lord Flat Trail was within the Hells Canyon

Wilderness. After temporarily banning motorized vehicle use

on the Trail to avoid violating the Wilderness Act, the Forest

Service decided in 1992 to relocate that part of the Trail

within the Wilderness. After the relocation, Hells Canyon

Preservation Council (“HCPC”), the plaintiff-appellant here,

brought suit, alleging that the Forest Service violated the

National Environmental Policy Act (NEPA), 42 U.S.C.

§§ 4321 et seq., by failing to file an environmental impact

statement when it relocated the 1.5 mile stretch of the Trail.

HCPC also maintained that, even after the relocation, other

parts of the Trail remained within the Hells Canyon Wilderness, and that, consequently, motorized vehicle use of the

Trail continued to violate the Wilderness Act. See Hells Canyon Pres. Council v. U.S. Forest Serv., 883 F. Supp. 534, 535

(D. Or. 1995) (“HCPC I”). 

HCPC’s Wilderness Act claim in HCPC I rested on a “Forest Service transportation system map” indicating a half-mile

area where the Lord Flat Trail appeared to cross the Wilderness boundary. In response to HCPC’s summary judgment

motion, the Forest Service responded that the map upon

which HCPC relied was “incorrect.” In other words, HCPC’s

1994 Wilderness Act claim was premised on a Forest Service

map that the Forest Service asserted was inaccurate. During

oral argument before the district court on the parties’ crossmotions for summary judgment, HCPC, taking into account

the Forest Service’s representation, voluntarily abandoned its

Wilderness Act claim. Accordingly, the district court, after it

rejected HCPC’s NEPA claim on the merits, dismissed the

cross-motions for summary judgment on the Wilderness Act

claim as “moot.” See id. at 539. 

It was not until 1997 that HCPC specifically documented

those locations where the Trail crossed the hydrologic divide.

The divide is, according to HCPC’s interpretation of the

HCNRA Act, the Wilderness boundary. In response to that

discovery, and after a series of exchanges with the Forest Ser4000 HELLS CANYON v. U.S. FOREST SERVICE
vice over the existence and location of the “May 1978” map

referred to in the Act, HCPC brought this suit in 2002, alleging violations of the HCNRA Act, the Wilderness Act, and

the Administrative Procedure Act, 5 U.S.C. § 706. Specifically, HCPC alleged in its complaint that (1) the Service violated the HCNRA Act by failing to produce or otherwise

provide the 1978 map required by the Act to be on file in the

Forest Service Chief’s office; (2) portions of the Lord Flat

Trail remain in the Hells Canyon Wilderness, and motorized

vehicle use on the trail therefore violates the Wilderness Act;

and (3) the Service’s current definition of the western Wilderness boundary as following the rim of the Canyon rather than

the hydrologic divide is arbitrary and capricious in violation

of the APA. 

In an unpublished opinion, the district court dismissed the

suit, finding each of HCPC’s claims barred by res judicata.

Specifically, the court held that all of HCPC’s claims either

were or could have been raised in the HCPC I litigation, and

that final judgment in that case therefore precluded relitigation of those claims here. From this ruling, HCPC timely

appeals. 

II

[1] We review the district court’s dismissal on res judicata

grounds de novo. Stewart v. U.S. Bancorp, 297 F.3d 953, 956

(9th Cir. 2002). As we recently explained, “[t]he doctrine of

res judicata provides that a final judgment on the merits bars

further claims by parties or their privies based on the same

cause of action, and is central to the purpose for which civil

courts have been established, the conclusive resolution of disputes within their jurisdiction.” Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051-52 (9th Cir. 2005) (internal

quotation marks omitted).2“The elements necessary to estab2Claim preclusion bars any lawsuits on any claims that were raised or

could have been raised in a prior action.” Providence Health Plan v.

HELLS CANYON v. U.S. FOREST SERVICE 4001
lish res judicata are: ‘(1) an identity of claims, (2) a final

judgment on the merits, and (3) privity between parties.’ ” Id.

at 1052 (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe

Reg’l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003)).

As the parties are identical, the only issues here are whether

there is “an identity of claims” with, and “a final judgment on

the merits” in, HCPC I.

A

The district court in this case concluded that HCPC’s Wilderness Act claim reached a final judgment on the merits of

the action in HCPC I. It is certainly true that there was a final

judgment on the merits of the action in HCPC I, as the district

court granted the government’s motion for summary judgment on HCPC’s NEPA claim. See HCPC I, 883 F. Supp. at

539; see also Fed. R. Civ. P. 56(c). But res judicata doctrine

focuses on an identity of claims, specifying that “a valid final

adjudication of a claim precludes a second action on that

claim or any part of it.” Baker ex rel. Thomas v. Gen. Motors

Corp., 522 U.S. 222, 233 n.5 (1998) (emphasis added). That

is to say, the “final judgment” prong of the res judicata test

is claim-specific. With that caveat in mind, we turn to the

somewhat thorny question whether the Wilderness Act claim

in HCPC I was included in the “final judgment on the merits”

rendered by the district court. 

McDowell, 385 F.3d 1168, 1173-74 (9th Cir. 2004) (emphasis and internal

quotation marks omitted), petition for cert. filed, 73 U.S.L.W. 3401 (U.S.

Dec. 28, 2004) (No. 04-883). We note, briefly, that courts have not always

been clear that the phrase “claims that were raised or could have been

raised,” refers to legal theories arising out of the same transactional

nucleus of facts, rather than to distinct causes of action. The contrary reading would suggest that any cause of action that could have been joined in

the original action would be precluded, a point we rejected over four decades ago. See Bankers Trust Co. v. Pac. Employers Ins. Co., 282 F.2d 106,

111 (9th Cir. 1960); see also Gallagher v. Frye, 631 F.2d 127, 130 (9th

Cir. 1980). 

4002 HELLS CANYON v. U.S. FOREST SERVICE
[2] “[F]inal judgment on the merits” is synonymous with

“dismissal with prejudice.” See, e.g., Stewart, 297 F.3d at

956; see also Semtek Int’l Inc. v. Lockheed Martin Corp., 531

U.S. 497, 505-06 (2001). HCPC I, however, is silent as to

whether HCPC’s Wilderness Act claim was dismissed by the

court at all. In full, the relevant passage of the opinion in

HCPC I provides as follows:

In its complaint, plaintiff alleged that another portion of Lord Flat Road is located illegally within the

wilderness area and must be closed. At the hearing

on the parties’ motions for summary judgment,

plaintiff withdrew that claim. Accordingly, defendant’s and plaintiff’s motions for summary judgment

on that claim are MOOT. 

883 F. Supp. at 539. The Forest Service also emphasizes the

language of the judgment in HCPC I. That judgment, however, provided only that “this action is dismissed,” (emphasis

added), without specifying which claims were still part of the

action when it was dismissed. 

The Forest Service argues that HCPC I’s silence is given

meaning by Rule 41(b) of the Federal Rules of Civil Procedure, which provides in pertinent part that:

Unless the court in its order for dismissal otherwise

specifies, a dismissal under this subdivision and any

dismissal not provided for in this rule, other than a

dismissal for lack of jurisdiction, for improper

venue, or for failure to join a party under Rule 19,

operates as an adjudication upon the merits.[3] 

3Because this suit was filed in the same district court as HCPC I, we

need not address the impact of Semtek’s holding that an “adjudication

upon the merits” under Rule 41(b) does not necessarily have preclusive

effect in other courts. See, e.g., Semtek, 531 U.S. at 506; see also Headwaters, 399 F.3d at 1052 n.4 (“As this case was filed in the same district

court as the one claimed to be preclusive, however, the otherwise important distinction made in Semtek is not pertinent to this prong of the inquiry.”). 

HELLS CANYON v. U.S. FOREST SERVICE 4003
HCPC, in contrast, urges us to interpret the district court’s

silence by reference to Rule 41(a)(2), which allows for voluntary dismissals of actions with judicial consent, and provides

that “[u]nless otherwise specified in the order [of dismissal],

a dismissal under this paragraph is without prejudice.” 

Because we are reviewing the preclusive effect of the district court’s decision in HCPC I, we must make our own

determination of the basis for the dismissal, using the available record from HCPC I. On our independent review of

HCPC I, we find neither party’s argument concerning the

impact of Rule 41 on the judgment entered in HCPC I convincing. Instead, the district court’s treatment in HCPC I of

the Wilderness Act claim is best construed as approval of an

oral amendment of the complaint to excise that claim. So construed, the action at the time of dismissal contained no Wilderness Act cause of action, and there was therefore no final

judgment on the merits with regard to that claim.

1

As its title, “Dismissal of Actions,” suggests, Rule 41, or

at least Rule 41(a), governs dismissals of entire actions, not

of individual claims. Most contemporary courts, including our

own, have declined to read the rule literally as permitting the

dismissal only of an entire action against all defendants. See,

e.g., Pedrina v. Chun, 987 F.2d 608, 609 & n.1 (9th Cir.

1993). These same cases, however, have only extended the

rule to allow the dismissal of all claims against one defendant,

so that a defendant may be dismissed from the entire action.

Nothing in the case law suggests that Rule 41(a) extends to

the voluntary withdrawal of individual claims against a defendant remaining in the case. 

[3] In the specific context of Rule 41(a)(1), we have held

that the Rule does not allow for piecemeal dismissals. Instead,

withdrawals of individual claims against a given defendant

are governed by Fed. R. Civ. P. 15, which addresses amend4004 HELLS CANYON v. U.S. FOREST SERVICE
ments to pleadings. See Ethridge v. Harbor House Restaurant, 861 F.2d 1389 (9th Cir. 1988). As we noted in Ethridge,

“a plaintiff may not use Rule 41(a)(1)(i) to dismiss, unilaterally, a single claim from a multi-claim complaint.” Id. at

1392. Instead, we agreed with two of our sister circuits4 that

“Federal Rule of Civil Procedure 15(a) is the appropriate

mechanism ‘[w]here a plaintiff desires to eliminate an issue,

or one or more but less than all of several claims, but without

dismissing as to any of the defendants.’ ” Id. (quoting 5 J.

MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶ 41.06-1, at 41-83

to -84 (1987)) (alteration in original); see also Gen. Signal

Corp. v. MCI Telecomms. Corp., 66 F.3d 1500, 1513 (9th Cir.

1995) (“[W]e have held that Rule 15, not Rule 41, governs the

situation when a party dismisses some, but not all, of its

claims.” (citing Ethridge, 861 F.2d at 1392)); Gronholz v.

Sears, Roebuck & Co., 836 F.2d 515, 518 (Fed. Cir. 1987).5

[4] In the seventeen years since Ethridge, we have not had

an opportunity to consider whether the same logic extends to

the other method of voluntary dismissal under Rule 41 — voluntary dismissal with judicial consent, under Rule 41(a)(2).6

4The cases upon which we relied in Ethridge were Management Investors v. United Mine Workers of America, 610 F.2d 384, 394 & n.22 (6th

Cir. 1979); and Exxon Corp. v. Maryland Casualty Co., 599 F.2d 659, 662

(5th Cir. 1979). See Ethridge, 861 F.2d at 1392. Later cases from other circuits have adopted the same rule. See, e.g., Klay v. United Healthgroup,

Inc., 376 F.3d 1092, 1106 (11th Cir. 2004). 

5As the Federal Circuit explained in Gronholz, this distinction can have

jurisdictional consequences in some cases, where the only claim that

creates federal jurisdiction (or, in Gronholz, Federal Circuit jurisdiction),

is voluntarily dismissed. Construed instead as an amendment of the complaint to drop the claim, such an action can, in those cases, destroy jurisdiction. See 836 F.2d at 518-19. There is no question, however, that the

same was not true in HCPC I. 

6Five years before Ethridge, we hinted that it does, without so holding,

in Mechmetals Corp. v. Telex Computer Products, Inc., 709 F.2d 1287

(9th Cir. 1983). There, in suggesting that the same prejudice inquiry

applies to dismissals under Rule 41 and amendments of complaints under

Rule 15, we cited an Eighth Circuit case for the proposition that “it is

immaterial whether [a] court acts pursuant to Rule 15(a) or Rule

41(a)(2)).” Id. at 1294 (citing Wilson v. Crouse-Hinds Co., 556 F.2d 870,

873 (8th Cir. 1977)). 

HELLS CANYON v. U.S. FOREST SERVICE 4005
Other courts to consider this issue, however, have not suggested any meaningful distinction between Rules 41(a)(1) and

41(a)(2) in this context. See, e.g., Klay, 376 F.3d at 1106

(“Rule 41 allows a plaintiff to dismiss all of his claims against

a particular defendant; its text does not permit plaintiffs to

pick and choose, dismissing only particular claims within an

action.”); Nilssen v. Motorola, Inc., 203 F.3d 782, 784 (Fed.

Cir. 2000). 

[5] We agree that there is no reason to make such a distinction here. The only functional difference between the two provisions is dictated by timing. Dismissal is available under

Rule 41(a)(1) without the court’s consent, so long as it is

accomplished “before a responsive pleading is served or, if

there is none, before the introduction of evidence at the trial

or hearing.” FED. R. CIV. P. 41(c). In contrast, dismissal under

Rule 41(a)(2) may only be achieved through “order of the

court and upon such terms and conditions as the court deems

proper.” 

Rule 15(a), however, includes precisely the same distinction. That is to say, both timing possibilities are also

accounted for in Rule 15(a), and Rule 15(a), like Rule

41(a)(2), specifies judicial approval after a responsive pleading is filed absent stipulation by the opposing party. In pertinent part, the Rule provides that:

A party may amend the party’s pleading once as

a matter of course at any time before a responsive

pleading is served or, if the pleading is one to which

no responsive pleading is permitted and the action

has not been placed upon the trial calendar, the party

may so amend it at any time within 20 days after it

is served. Otherwise a party may amend the party’s

pleading only by leave of court or by written consent

of the adverse party; and leave shall be freely given

when justice so requires. 

4006 HELLS CANYON v. U.S. FOREST SERVICE
FED. R. CIV. P. 15(a). 

We therefore disagree with HCPC that we should construe

its withdrawal of its Wilderness Act claim in HCPC I as a

voluntary dismissal under Rule 41(a)(2), and therefore as a

dismissal without prejudice.

2

[6] Unlike Rule 41(a), Rule 41(b) does distinguish between

“actions” and “claims.”

7

 Therefore, the Forest Service appears

to be on firmer footing in arguing that we may separately construe a dismissal of an individual claim as an involuntary dismissal under Rule 41(b). It is also true that, whereas the plain

language of Rule 41(b) suggests that such dismissals may

only result from a defendant’s motion, and there was not such

a motion in HCPC I, the consensus among our sister circuits,

with which we agree, is that courts may dismiss under Rule

41(b) sua sponte, at least under certain circumstances. See,

e.g., Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir.

2003) (“[T]he Rule has long been interpreted to permit courts

to dismiss actions sua sponte for a plaintiff’s failure to prosecute or comply with the rules of civil procedure or court’s

orders.” (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630-

31 (1962))); O’Rourke Bros. Inc. v. Nesbitt Burns, Inc., 201

F.3d 948, 952 (7th Cir. 2000). 

[7] Nevertheless, we believe that the Forest Service’s argument is premised on a fundamental misunderstanding of

HCPC I — that the district court necessarily “dismissed”

7As other courts have noted, the distinction in Rule 41(b) between

actions and claims lends further support for the proposition that Rule 41(a)

does not encompass the dismissal of individual claims. See, e.g., Gronholz, 836 F.2d at 518 (“ ‘The reference to an “action” in Rule 41(a) contrasts with Rule 41(b) . . . . The language of Rule 41(b) is broader and

more comprehensive than the parallel language in Rule 41(a).’ ” (quoting

Smith, Kline & French Labs. v. A.H. Robins Co., 61 F.R.D. 24, 28 (E.D.

Pa. 1973))). 

HELLS CANYON v. U.S. FOREST SERVICE 4007
HCPC’s Wilderness Act claim when it entered its final judgment. Instead, as the above analysis suggests, what the district

court should have done, and what we believe it did do, was

treat HCPC’s oral withdrawal of its Wilderness Act claim as

a motion to amend its complaint under Rule 15(a). 

True, the district court did not explicitly state that it was

permitting a Rule 15(a) amendment. We agree with the Federal Circuit, however, that “[t]he true state of affairs is more

critical than mere labels. The fact that a voluntary dismissal

of a claim under Rule 41(a) is properly labeled an amendment

under Rule 15 is a technical, not a substantive, distinction.”

Nilssen, 203 F.3d at 784 (footnote omitted); see also Johnson

v. Cartwright, 355 F.2d 32, 39 (8th Cir. 1966) (“[I]t may not

be material whether the court acts under Rule 15(a) which

relates to amendments, . . . or Rule 41(a)(2).”). 

As we view HCPC I’s ruling denying the cross-motions for

summary judgment because they were “moot,” the district

court concluded that HCPC’s Wilderness Act claim was no

longer before it, because the pleadings had been amended to

eliminate it. HCPC I could not have meant to use the term

“moot” in its Article III jurisdictional sense — otherwise, it

would have had to dismiss the claim as moot, rather than deny

the motions as such.8See, e.g., Envtl. Prot. Info. Ctr., Inc. v.

Pac. Lumber Co., 257 F.3d 1071, 1076-77 (9th Cir. 2001)

(citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

94 (1998)). Consequently, the only plausible reading of

HCPC I is that the court in that case used the term “moot” to

mean that it had no reason to inquire whether there remained

a live dispute concerning the location of the Trail. This result

could only have followed if the district court understood that

8This point explains why HCPC is incorrect that, even if Rule 41(b)

does govern the dismissal of its Wilderness Act claim in HCPC I, the dismissal was for a “lack of jurisdiction,” and was therefore not an “adjudication upon the merits.” The claim was not dismissed as moot; the crossmotions were denied as moot. See HCPC I, 883 F. Supp. at 539. 

4008 HELLS CANYON v. U.S. FOREST SERVICE
the claim had already been withdrawn. See Klay, 376 F.3d at

1106 (recognizing that a district court’s statement that there

is no longer a “controversy” regarding a claim that was purportedly dismissed can be construed as permission to amend

the complaint to eliminate that claim). 

[8] In other words, because it is clear from the record that

HCPC’s Wilderness Act claim was already withdrawn before

the district court entered judgment, the fact that the court did

not explicitly state that he was permitting an amendment of

the pleadings under Rule 15 is “a technical, not a substantive,

distinction.” We therefore construe HCPC’s oral — and, we

emphasize, unopposed — withdrawal of its Wilderness Act

claim as an amendment of its complaint, pursuant to Rule

15(a). The district court’s recognition of the withdrawal in its

opinion is, in our view, indicative of its implicit consent to the

“amendment.” Cf. Am. States Ins. Co. v. Dastar Corp., 318

F.3d 881, 888 & n.8 (9th Cir. 2003) (construing a consensual

dismissal of individual claims as a Rule 15(a) amendment). It

is axiomatic that prejudice does not attach to a claim that is

properly dropped from a complaint under Rule 15(a) prior to

final judgment. Consequently, there could not have been a

“final judgment on the merits” with regard to HCPC’s Wilderness Act claim in HCPC I.

B

[9] In light of the foregoing analysis, the only claim that

reached a final judgment on the merits in HCPC I was

HCPC’s cause of action under NEPA. We therefore turn to

whether there is an “identity of claims” between HCPC’s

NEPA claim in that litigation and its various claims here. 

Whether there is an identity of claims turns on:

(1) whether rights or interests established in the prior

judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially

HELLS CANYON v. U.S. FOREST SERVICE 4009
the same evidence is presented in the two actions;

(3) whether the two suits involve infringement of the

same right; and (4) whether the two suits arise out of

the same transactional nucleus of facts. The last of

these criteria is the most important. 

Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02

(9th Cir. 1982) (citation and internal quotation marks omitted). 

HCPC’s claims here arise out of a different “transactional

nucleus of facts” than its NEPA claim in HCPC I. In HCPC

I, HCPC’s sole contention was that the Forest Service violated

NEPA by relocating the 1.5-mile stretch of the Lord Flat Trail

without filing an environmental impact statement. At its

broadest, then, the transactional nucleus of facts relevant to

HCPC’s NEPA claim was that the Forest Service had (a)

decided to relocate that stretch of the trail, and (b) had done

so without filing an EIS. By contrast, HCPC’s Wilderness Act

claim here arises out of its assertion that parts of the trail

remain inside the Wilderness after the relocation; its HCNRA

Act claim arises out of the Service’s failure to display the

“May 1978” map as required by the statute; and its related

APA claims arise out of the same facts. 

[10] Consequently, the district court’s final judgment on

the merits with regard to HCPC’s NEPA claim in HCPC I

does not bar HCPC’s claims on the merits here. Because there

was also no final judgment on the merits with regard to

HCPC’s Wilderness Act claim, the district court in this case

erred in dismissing HCPC’s claims on the basis of res judicata.

III

Although we may affirm the district court on any ground

supported by the record, Wolfe v. Strankman, 392 F.3d 358,

362 (9th Cir. 2004), this appeal comes to us on a motion to

4010 HELLS CANYON v. U.S. FOREST SERVICE
dismiss, and the record is therefore largely undeveloped. For

example, the government’s central alternative argument for

affirming the district court is that HCPC’s claims are timebarred by 28 U.S.C. § 2401(a). The question of when a claim

accrues is a fact-intensive inquiry, and we have held that a

district court’s factual finding concerning when a claim

accrues is entitled to deferential review. See, e.g., Erlin v.

United States, 364 F.3d 1127, 1130 (9th Cir. 2004). The necessary implication of such a holding is that, unless remand is

futile, see, e.g., Moore v. United Kingdom, 384 F.3d 1079,

1088 (9th Cir. 2004), the district court should have the first

opportunity, on a more complete record, to make such a determination.9

We therefore REVERSE the district court’s dismissal of

this action on res judicata grounds, and REMAND for further

proceedings consistent with this opinion. 

REVERSED and REMANDED.

9The same logic applies a fortiori to the Forest Service’s argument that

HCPC lacks standing to pursue its claim under the HCNRA Act. The Forest Service’s position — that HCPC suffered no injury because the “May

1978” map was provided to them in the course of a FOIA request — necessarily relies on factual evidence that the district court could not have

considered on a motion to dismiss. See FED. R. CIV. P. 12(b)(6); Jackson

v. S. Cal. Gas Co., 881 F.2d 638, 643 n.4 (9th Cir. 1989). 

HELLS CANYON v. U.S. FOREST SERVICE 4011