concurring in part and dissenting in part:
I respectfully dissent from Part II of the majority’s disposition which affirms the district court’s denial of injunctive relief to Puget Sound Plywood, Inc. (“Puget Sound”) and Publishers Forest Products Company of Washington (“Publishers”). Puget Sound and Publishers sought injunc-tive relief to compel the Forest Service to permit them to amend their buy-out applications in order to include certain Mt. Adams Veneer Company’s (“Mt. Adams”) contracts in their respective applications.
The majority properly determines that Puget Sound and Mt. Adams are affiliates and that Publishers and Mt. Adams are affiliates. But somehow it fails to recognize the necessary implication of these conclusions: as affiliates of Mt. Adams, Puget Sound and Publishers are each entitled to include portions of Mt. Adams’ contracts in their separate buy-out applications. Instead, the majority insists that Puget Sound and Publishers be relegated back to the Forest Service to start a new, and in my view needless, process seeking leave to amend their original filings. Even footnote 4 of the majority’s disposition acknowledges that such process is likely to be a useless act, and counsel for the Forest Service said as much during oral argument. The majority simply prescribes an exercise in futility. The majority improperly and illogically divorces the findings on the merits from the determination of whether Puget Sound and Publishers may amend their applications in light of such findings. The Federal Timber Contract Payment Modification Act clearly provides that, for the purpose of determining a purchaser’s buyout limitation, affiliates “shall be treated as a single entity.” 16 U.S.C. § 618(a)(7)(A). Obviously this means that an entity consisting of two affiliates is allowed only one buy-out entitlement rather than two and that such an entity may elect to buy out the most economically advantageous contracts held by either affiliate. Puget Sound/Mt. Adams and Publishers/Mt. Adams must therefore be treated as single entities; having been deemed affiliates of Mt. Adams, Puget Sound and Publishers are each necessarily entitled to include selected Mt. Adams’ contracts in their buyout applications.
The district court has the power to order equitable relief. See Sierra Pacific v. Lyng, 866 F.2d 1099, 1112 (9th Cir.1989) (“We find nothing in the statute to indicate that Congress intended to divest the [district] courts of their inherent equitable powers”). I believe the district court improperly failed to exercise its equitable powers by not requiring the Forest Service to permit Puget Sound and Publishers to amend their buy-out applications as a consequence of its ruling on the merits.
I would therefore remand to district court with instructions to grant such equitable relief.