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; No. 03-36032

HUNTER SHARP, Chief Ranger,

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

ORDER

National Park Service; MARCIA WITHDRAWING

BLASZAK, Acting Regional Director OPINION 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

1295

1296 HALE v. NORTON

Filed February 5, 2007

Before: Alfred T. Goodwin, Melvin Brunetti, and

William A. Fletcher, Circuit Judges.

Opinion by Judge William A. Fletcher

1298 HALE v. NORTON

COUNSEL

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

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

HALE v. NORTON 1299

Matthew J. Sanders, United States Department of Justice,

Washington, D.C., for the defendants-appellees.

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

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

appellees.

ORDER

This court’s opinion filed on August 25, 2006, and pub-

lished at 461 F.3d 1092 (9th Cir. 2006), is withdrawn and

replaced by the attached opinion.

No further petitions for rehearing or petitions for rehearing

en banc may be filed.

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. Whatever road-like qualities the

route presently has is due to the Hales’ un-permitted “clear-

ing” activities. The primary use of the trail by the plaintiffs

has, until recently, been on horse-back.

The house on the Hales’ property burned down in the

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

1300 HALE v. NORTON

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

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 D-4 or D-5 bulldozer towing a six-

teen foot trailer. The bulldozer used would weigh between

17,000 and 21,000 pounds, and would be between 8 and 11

feet wide. The trailer used would weigh, with supplies,

between 3,000 and 5,000 pounds, and would be 8 feet wide.

The superintendent responded promptly, offering to assist the

Hales in preparing the necessary applications for a right-of-

way permit. Two months later, in September 2003, the Hales

submitted 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. In particular, the letter articulated the

NPS’s concern that the Hales were planning to run the bull-

dozer over the route before “freeze up.” The NPS noted that

other inholders in the Park had “been able to adapt to the win-

ter schedule for freighting supplies and building materials,”

using bulldozers for access in the winter months (that is, after

“freeze up”) when the frozen ground and snow cover pro-

tected the earth from extensive damage. The NPS explained

that “[t]ravel over unfrozen ground causes significantly more

damage,” and that because such travel “falls outside of any

environmental assessment previously undertaken by the

Park,” the Hales’ permit request “will required [sic] a more

extensive review under the National Environmental Policy

Act [NEPA] . . . .”

The Hales responded in writing, but did not provide all of

the requested information. The NPS then informed the Hales

in a letter that an environmental assessment (“EA”) would be

HALE v. NORTON 1301

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 the same letter, the NPS expressed

concern that the Hales’ requested trips “would entail a total of

about 230 crossings of McCarthy Creek, a stream with a

native Dolly Varden trout population.” The Hales’ own expert

later acknowledged that there could be damage to the environ-

ment, including having to “scrape down to the mineral soil”

in one section of the road and using “blade engagement to

redistribute some of the sloughed material on the existing

road surface” in another section.

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. However, 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 injunction requiring the NPS to provide what they deemed

adequate and feasible access to their property, and a declara-

tory judgment that the NPS was violating their right-of-way

over the MGB road by requiring a permit. They also sought

a declaratory judgment that issuing a permit for use of the

MGB road did not constitute a major federal action subject to

the requirements of NEPA. The Hales moved for a Temporary

Restraining 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-

1302 HALE v. NORTON

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

because there was no final agency action to review.

The Hales timely appealed.

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

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

HALE v. NORTON 1303

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 is treated as final and immediately appeal-

able. 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).

[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-

1304 HALE v. NORTON

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 NPS 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 doc-

trine. 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

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 burden that would be imposed by a NEPA

analysis. Like qualified immunity, the Hales’ claim turns on

an “essentially legal question,” and that claim is “effectively

lost” if the NPS conducts the NEPA analysis. If the Hales

HALE v. NORTON 1305

must wait until after the analysis is performed to challenge the

NPS’s permitting decision, any question about the applicabil-

ity 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 ref-

erence to the permit issued (or denied), and the NEPA proce-

dure that the NPS followed in reaching its permitting decision

will likely not be relevant to that determination.

[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” within

the meaning of ANILCA. Third, if the Hales must wait for the

NPS’s ultimate permitting decision, the Department of the

Interior’s decision to apply NEPA will likely become effec-

tively 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 admin-

istrative order that rejected defendants’ assertion of statutory

immunity). We therefore conclude that we have jurisdiction

over the Hales’ appeal under the collateral order doctrine.

II. Discussion

[6] 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 argu-

ment 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.

1306 HALE v. NORTON

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 nevertheless 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 access rights for inholders, but it

also contemplates reasonable government regulation. Under

ANILCA, inholders are entitled to “such rights as may be

necessary to assure adequate and feasible access” to their land

“notwithstanding any . . . other law,” but these access 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).

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 is one that “[n]ormally does not require”

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

HALE v. NORTON 1307

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

per se conflict between NEPA’s information-gathering and

analysis requirements and ANILCA’s requirement of “ade-

quate 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 ful-

lest extent possible . . . the policies, regulations, and public

laws of the United States shall be interpreted and adminis-

tered in accordance with the policies set forth in this [Act].”

42 U.S.C. § 4332. In our view, NEPA helps rather than hin-

ders the NPS in fulfilling its statutory duty under ANILCA to

balance “adequate and feasible access” with the protection of

“natural and other values of [the] lands.”

A requirement that an EA or EIS be prepared in connection

with a routine permit application might conflict with ANIL-

CA’s requirement of “adequate and feasible access,” depend-

ing on the nature of the application and the possible time and

1308 HALE v. NORTON

cost involved in a NEPA review. But that is not the situation

in the present appeal.

[10] In this case, we hold that the NPS acted reasonably in

requiring an EA. The Hales’ request to make sixteen trips

with a bulldozer and trailer during the pre-freeze up period

was an out-of-the-ordinary request. The trips contemplated by

the Hales threatened to cause significantly more environmen-

tal damage than would be caused by the more usual post-

freeze up runs. Their request was tantamount to a request to

rebuild and reopen the overgrown trail that the “MGB road”

had become in the two thirds of a century since it was aban-

doned. Moreover, the Hales’ principal justification for this

request — that it was more dangerous to drive in the winter

— makes no sense to those experienced with conditions in

Alaska. As the NPS wrote in response to the Hales’ request,

other inholders successfully operate similar vehicles, but they

do so only in the winter. Winter use both protects the natural

environment from damage and protects inholders from getting

stuck in the mud. Finally, the NPS committed to complete the

environmental assessment in nine weeks and waived the cost

of the assessment. In short, the NPS appears to have done

everything it could to accommodate the Hales and to facilitate

reasonable access to their property. The Hales, on the other

hand, refused to cooperate in the process, and failed to pro-

vide the NPS with the information it needed to grant an

appropriate permit. In these circumstances, it was entirely

appropriate for the NPS to apply a NEPA analysis to the

Hales’ request.

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 was consistent with the “adequate and feasible

access” right of ANILCA.

AFFIRMED.