Hale v. Norton

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT HALE; JOSHUA HALE; NAVA 

S. SUNSTAR; BUTTERFLY SUNSTAR,

Plaintiffs-Appellants,

v.

GALE NORTON, Secretary of the

Interior; GARY CANDELARIA,

Superintendent, Wrangell-St. Elias

National Park and Preserve;

HUNTER SHARP, Chief Ranger, No. 03-36032

Wrangell-St. Elias National Park D.C. No.

and Preserve; DEPARTMENT OF THE CV-03-00257-A-

INTERIOR; NATIONAL PARK SERVICE;

FRAN MAINELLA, Director of the

 RRB

National Park Service; MARCIA ORDER DENYING

BLASZAK, Acting Regional Director REHEARING AND

of the National Park Service; all in OPINION

their official capacities,

Defendants-Appellees,

NATIONAL PARKS CONSERVATION

ASSOCIATION; THE WILDERNESS

SOCIETY; ALASKA CENTER FOR THE

ENVIRONMENT,

Defendants-Intervenors-

Appellees.



Appeal from the United States District Court

for the District of Alaska

Ralph R. Beistline, District Judge, Presiding

Argued and Submitted

July 12, 2005—Anchorage, Alaska

10203

10204 HALE v. NORTON

Filed August 25, 2006

Before: Alfred T. Goodwin, Melvin Brunetti, and

William A. Fletcher, Circuit Judges.

Opinion by Judge William A. Fletcher

10206 HALE v. NORTON

COUNSEL

Russell C. Brooks and James S. Burling, Pacific Legal Foun-

dation, Sacramento, California, for the plaintiffs-appellants.

Matthew J. Sanders, United States Department of Justice,

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

Robert W. Randall and Rebecca L. Bernard, Trustees for

Alaska, Anchorage, Alaska, for the defendants-intervenors-

appellees.

HALE v. NORTON 10207

ORDER

This court’s opinion filed on February 9, 2006, and pub-

lished at 437 F.3d 892 (9th Cir. 2006), is withdrawn and

replaced by the attached opinion.

With the filing of this new opinion, the panel has voted

unanimously to deny Appellants’ petition for rehearing. Judge

Fletcher has voted to deny the petition for rehearing en banc,

and Judge Goodwin and Brunetti so recommend. The full

court has been advised of the petition for rehearing en banc

and no judge of the court has requested a vote on whether to

rehear the matter en banc. Fed. R. App. P. 35. Appellants’

petition for rehearing and petition for rehearing en banc, filed

March 24, 2006, are DENIED.

OPINION

W. FLETCHER, Circuit Judge:

In 2002, plaintiffs-appellants (collectively, “the Hales”)

purchased 410 acres of land near McCarthy, Alaska. Their

property is completely surrounded by the Wrangell-St. Elias

National Park and Preserve (the “Park”), which was created

in 1980. The Hales gain access to their property over what

used to be the thirteen-mile McCarthy-Green Butte Road (the

“MGB road”). In 1938, the Alaska Road Commission listed

the MGB road as “abandoned.” All of its bridges have washed

away, and the effects of vegetation and erosion have reduced

it to little more than a trail.

The house on the Hales’ property burned down in the

spring of 2003. During the course of rebuilding, the Hales

used a bulldozer to bring in supplies over the MGB road with-

out first seeking authorization from the National Park Service

(“NPS”). Shortly thereafter, the NPS posted a public notice

10208 HALE v. NORTON

stating that no motorized vehicles except snow machines

could use the MGB road. In July 2003, the Hales contacted

the NPS superintendent to request a permanent permit to trav-

erse the MGB road with a bulldozer and a trailer. The superin-

tendent responded promptly, offering to assist the Hales in

preparing the necessary applications for a right-of-way per-

mit. Two months later, in September 2003, the Hales submit-

ted an “emergency” application for a temporary permit,

asserting that they needed to transfer supplies before “freeze

up.”

The NPS promptly responded by letter, requesting more

information about the nature of the emergency and the pro-

posed bulldozer use. The letter noted that other inholders in

the Park had used bulldozers for access in the winter months

(that is, after “freeze up”) when the frozen ground and snow

cover protected the ground from damage. The Hales

responded in writing, but did not provide all of the requested

information. The NPS then informed the Hales that an envi-

ronmental assessment (“EA”) would be required before the

agency could grant a permit for bulldozer use. The NPS

explained that it did not regard the situation as falling within

the emergency exception to the requirements of the National

Environmental Policy Act (“NEPA”), as set out in 40 C.F.R.

§ 1506.11.

In a series of contacts in September and October 2003, the

NPS offered to prepare an EA and make a decision in approx-

imately nine weeks. It also offered to waive the expense of

conducting the EA. The Hales did not provide the information

the NPS requested in order to conduct the EA. Instead, in

November 2003, they filed this suit. They sought an injunc-

tion requiring the NPS to provide what they deemed adequate

and feasible access to their property, and a declaratory judg-

ment that the NPS was violating their right-of-way over the

MGB road by requiring a permit. They also sought a declara-

tory judgment that issuing a permit for use of the MGB road

did not constitute a major federal action subject to the require-

HALE v. NORTON 10209

ments of NEPA. The Hales moved for a Temporary Restrain-

ing Order (“TRO”) and a preliminary injunction.

The district court denied the motion for the TRO and dis-

missed the case for lack of subject matter jurisdiction. The

court held that even if the Hales had a valid right-of-way over

the MGB road, their use of the road was subject to reasonable

regulation by the NPS. Consequently, the Hales were required

to apply for a permit, regardless of any right-of-way they

might possess. Since the NPS had not acted on the Hales’ per-

mit application, the district court held that it lacked jurisdic-

tion under the Administrative Procedure Act, 5 U.S.C. § 704,

because there was no final agency action to review.

I. Jurisdiction

We review de novo dismissals for lack of subject matter

jurisdiction. Kaiser v. Blue Cross of Cal., 347 F.3d 1107,

1111 (9th Cir. 2003).

[1] The Administrative Procedure Act provides for judicial

review only of “[a]gency action made reviewable by statute

and final agency action for which there is no other adequate

remedy in a court.” 5 U.S.C. § 704. The Supreme Court has

explained that

[a]s a general matter, two conditions must be satis-

fied for agency action to be “final”: First, the action

must mark the “consummation” of the agency’s

decisionmaking process—it must not be of a merely

tentative or interlocutory nature. And second, the

action must be one by which “rights and obligations

have been determined,” or from which “legal conse-

quences will flow.”

Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations omit-

ted). “[T]he fact that a statement may be definitive on some

issue is insufficient to create a final action subject to judicial

10210 HALE v. NORTON

review.” Indus. Customers of Nw. Utils. v. Bonneville Power

Admin., 408 F.3d 638, 646 (9th Cir. 2005). For example,

courts have found that “[a] requirement that a party partici-

pate in additional administrative proceedings is different in

kind and legal effect from the burdens attending what hereto-

fore has been considered to be final agency action.” Nat’l

Ass’n of Home Builders v. U.S. Army Corps of Eng’rs, 417

F.3d 1272, 1279 (D.C. Cir. 2005) (internal quotation marks

and citation omitted); see also Home Builders Ass’n of

Greater Chicago v. U.S. Army Corps of Eng’rs, 335 F.3d 607,

616 (7th Cir. 2003).

[2] Even if a particular agency action does not, on its own,

satisfy the principle of finality, the collateral order doctrine

may nevertheless preserve jurisdiction. Under the collateral

order doctrine, a “small class” of orders that do not end the

proceedings below are treated as final and immediately

appealable. Cohen v. Beneficial Indus. Loan Corp., 337 U.S.

541, 546 (1949). To come within this “small class,” “the order

must conclusively determine the disputed question, resolve an

important issue completely separate from the merits of the

action, and be effectively unreviewable on appeal from a final

judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468

(1978).

The collateral order doctrine arose as a “practical construc-

tion” of 28 U.S.C. § 1291, which requires that appellate courts

review only “final decisions” of district courts. See Digital

Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867

(1994). However, the doctrine also applies to judicial review

of administrative proceedings. See, e.g., FTC v. Standard Oil

Co., 449 U.S. 232, 246 (1980) (applying the doctrine to deter-

mine the reviewability of an agency order); Rhode Island v.

EPA, 378 F.3d 19, 23-25 (1st Cir. 2004) (discussing the cir-

cuit consensus that the collateral order doctrine applies to

administrative determinations).

HALE v. NORTON 10211

[3] The Alaska National Interest Lands Conservation Act

(“ANILCA”) provides limited access rights for inholders such

as the Hales. The statute provides,

Notwithstanding any other provisions of this Act or

other law . . . the State or private owner or occupier

shall be given by the Secretary such rights as may be

necessary to assure adequate and feasible access for

economic and other purposes to the concerned land

. . . . Such rights shall be subject to reasonable regu-

lations issued by the Secretary to protect the natural

and other values of such lands.

16 U.S.C. § 3170(b). The Hales contend that the guarantee of

“adequate and feasible access” under ANILCA supersedes

other laws, including NEPA, and thus it is unreasonable for

the NPS, acting on behalf of the Secretary of the Department

of the Interior, to subject their permit request to any NEPA

analysis. Framed this way, the Hales’ complaint does not

challenge the result of the permitting process which, as the

district court found, had not produced a final action at the

time of the Hales’ suit. Rather, it challenges the authority of

the Department of the Interior to subject the permit request to

a NEPA analysis in the first place. See 43 C.F.R. §§ 36.6,

36.10(d).

[4] Given ANILCA’s unique statutory scheme, the Hales’

challenge is analogous to an appeal from the rejection of a

qualified immunity defense that turns on an issue of law—an

order that squarely falls within the collateral order doctrine.

See, e.g., Behrens v. Pelletier, 516 U.S. 299, 305 (1996).

Qualified immunity provides

an entitlement not to stand trial or face the other bur-

dens of litigation, conditioned on the resolution of

the essentially legal question whether the conduct of

which the plaintiff complains violated clearly estab-

lished law. The entitlement is immunity from suit

10212 HALE v. NORTON

rather than a mere defense to liability; and like an

absolute immunity, it is effectively lost if a case is

erroneously permitted to go to trial.

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The Hales

claim that because ANILCA guarantees access

“[n]otwithstanding any . . . other law,” they are entitled to

immunity from the burdens of NEPA analysis. Like qualified

immunity, the Hales’ claim turns on an “essentially legal

question,” and that claim is “effectively lost” if the NPS con-

ducts the NEPA analysis. If the Hales must wait to challenge

the NPS’s actual permitting decision, the relevance of NEPA

is likely to fall away. The district court will review the NPS’s

substantive determination of “adequate and feasible access . . .

subject to reasonable regulations” with reference to the permit

issued, and the procedure that the NPS followed in reaching

its permitting decision will likely not be relevant to that deter-

mination.

[5] We hold that the Hales here challenge an administrative

decision that, like an order that denies a qualified immunity

defense, satisfies the “conclusiveness,” “separability,” and

“unreviewability” prongs of the collateral order doctrine.

First, the regulations incorporating NEPA into the permitting

process are clearly conclusive and not tentative. Second, the

determination of whether the Department of the Interior can

incorporate NEPA into the permitting process is a pure and

independent question of law, separate from whether the

access ultimately afforded is “adequate and feasible.” Third,

if the Hales must wait for the NPS’s ultimate permitting deci-

sion, the Department of the Interior’s decision to apply NEPA

will likely become effectively unreviewable. Cf. Meredith v.

Fed. Mine Safety & Health Review Comm’n, 177 F.3d 1042,

1050-52 (D.C. Cir. 1999) (applying collateral order doctrine

to review an administrative order that rejected defendants’

assertion of statutory immunity).

HALE v. NORTON 10213

II. Discussion

[6] We agree with the district court that the Hales’ ability

to use the MGB road within the Park is subject to reasonable

regulation. In United States v. Vogler, 859 F.2d 638 (9th Cir.

1988), we decisively rejected the argument that the NPS lacks

the power to regulate travel to an inholding across federally

protected land. In Vogler, an inholder in the Yukon-Charley

Rivers National Preserve in Alaska sought to drive heavy

equipment over a claimed R.S. 2477 trail without a permit. Id.

at 640-42. Assuming, without deciding, that the trail qualified

as a right-of-way, we held that the government could never-

theless regulate the inholder’s use of the trail:

Congress has made it clear that the Secretary has

broad power to regulate and manage national parks.

The Secretary’s power to regulate within a national

park to “conserve the scenery and the nature and his-

toric objects and wildlife therein . . . .” applies with

equal force to regulating an established right of way

within the park . . . [T]he regulations here are neces-

sary to conserve the natural beauty of the Preserve;

therefore, they lie within the government’s power to

regulate national parks.

Id. at 642 (quoting 16 U.S.C. § 1). Consequently, even if the

Hales have a valid right-of-way over the MGB road — which

we do not decide — the existence of that right-of-way would

not shield them from reasonable regulation by the NPS.

[7] ANILCA provides limited access rights for inholders in

the absence of a right-of-way, but it also contemplates reason-

able government regulation. Under ANILCA, inholders are

entitled to “such rights as may be necessary to assure ade-

quate and feasible access” to their land, but these rights are

“subject to reasonable regulations issued by the Secretary to

protect the natural and other values of such lands.” 16 U.S.C.

§ 3170(b).

10214 HALE v. NORTON

NEPA requires the preparation of an environmental impact

statement (“EIS”) for “major Federal actions significantly

affecting the quality of the human environment.” 42 U.S.C.

§ 4332(C). The regulations direct agencies to prepare an “en-

vironmental assessment” (“EA”) to determine whether an EIS

is necessary unless the proposal is one that “[n]ormally

requires” an EIS or that “[n]ormally does not require” either

an EIS or an EA. See 40 C.F.R. § 1501.4(a)-(b). Even if an

EA is not required, however, “[a]gencies may prepare an

environmental assessment on any action at any time in order

to assist agency planning and decisionmaking.” 40 C.F.R.

§ 1501.3(b).

[8] NEPA ensures that an agency, “in reaching its decision,

will have available, and will carefully consider, detailed infor-

mation concerning significant environmental impacts,” and

will make such information available to the public. Robertson

v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).

“NEPA itself does not mandate particular results, but simply

prescribes the necessary process.” Id. at 350. Significantly,

“[i]f the adverse environmental effects of the proposed action

are adequately identified and evaluated, the agency is not con-

strained by NEPA from deciding that other values outweigh

the environmental costs.” Id.

[9] This case differs from Vogler only in that the Depart-

ment of the Interior has, by regulation, incorporated a NEPA

review process into its permit-granting procedure. We see no

conflict between NEPA’s information-gathering and analysis

requirements and ANILCA’s requirement of “adequate and

feasible access . . . subject to reasonable regulations . . . to

protect the natural and other values of such lands.” 16 U.S.C.

§ 3170(b). NEPA expressly provides that “to the fullest extent

possible . . . the policies, regulations, and public laws of the

United States shall be interpreted and administered in accor-

dance with the policies set forth in this [Act].” 42 U.S.C.

§ 4332. In our view, NEPA helps rather than hinders the

Department of the Interior in fulfilling its statutory duty under

HALE v. NORTON 10215

ANILCA to balance “adequate and feasible access” with the

protection of “natural and other values.” We therefore hold

that the incorporation of NEPA into the permit-granting pro-

cedure is consistent with ANILCA.

Conclusion

We hold that the district court had jurisdiction to consider

the Hales’ challenge to the incorporation of NEPA into

ANILCA’s permitting process, and that conducting a NEPA

analysis is consistent with the “adequate and feasible access”

right of ANILCA.

AFFIRMED.