Opposition Brief — Holland America Line-Westours, Inc. v. National Parks & Conservation Ass'n

No. 01-456 | one 2001

IN THE __— -

Supreme Court of the United States

HOLLAND AMERICA LINE-WESTOURS, INC.,

Petitioner,

V.

NATIONAL PARKS AND CONSERVATION ASSOCIATION, ef al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF IN OPPOSITION

JAMES A. HOURIHAN*

SCOTT H. REISCH

CATHERINE E. STETSON

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5491

* Counsel of Record Counsel for Respondent

National Parks Conservation

Association

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

QUESTION PRESENTED

Whether certiorari is warranted to review a decision of the

court of appeals enjoining an ongoing violation of the

National Environmental Protection Act, when the court

employed the traditional balancing test endorsed by this

Court in Amoco Production Co. v. Village of Gambell, 480

U.S. 531 (1987), fully weighed the parties’ interests and

evidence for and against an injunction, and concluded that

injunctive relief was appropriate.

(i)

PARTIES TO THE PROCEEDINGS

AND RULE 29.6 STATEMENT

Respondent National Parks Conservation Association

(formerly National Parks and Conservation Association), a

nonprofit citizens’ organization dedicated to protecting,

preserving, and enhancing the National Park System, was the

plaintiff-appellant below.

Petitioner Holland America Line-Westours intervened

below in support of defendants Department of the Interior

and the Director of the National Park Service.

(ii)

TABLE OF CONTENTS

QUESTION PRESENTED ............cccsssssseseesersteseteseeteeneees

PARTIES TO THE PROCEEDINGS AND RULE 29.6

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TABLE OF AUTHORITIES ..........:cccsccsccssecssseeseseneneesneees

INTRODUCTION ...........:ccssccssssssssssosrcssecenscsessscssscessossonsens

COUNTERSTATEMENT ..........:cescessesseseeenessessessesensnereees

REASONS FOR DENYING THE WRIT.............::c:ccesee0es

I. THE DECISION BELOW DOES NOT

CONFLICT WITH THE DECISIONS OF

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II. THE DECISION BELOW DOES NOT

CONFLICT WITH THE DECISIONS OF

OTHER COURTS OF APPEAL............:c0sceeses000

Ill. THIS CASE INVOLVES NO UNSETTLED

ISSUE OF NATIONAL IMPORTANCE.............

IV. THE DECISION BELOW WAS CORRECT.......

CONCLUSION .......0..ccccsssccsscssssccsrcecsecscsssssnsescscressnssenensees

(iti)

10

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TABLE OF AUTHORITIES

CASES:

Amoco Prod. Co. v. Village of Gambell, 480

RED, SOE CEO Ti aissciiesensvedicsinninsennintcespencstnegsinasibcncents

Blue Mountains Biodiversity Project v.

Blackwood, 161 F.3d 1208 (9th Cir.

1998), cert. denied, 527 U.S. 1003 (1999)...........040

Citizen Advocates for Responsible Expan-

sion v. Dole, 770 F.2d 423 (Sth Cir. 1985).............+.

City of Davis v. Coleman, 521 F.2d 661 (9th

AE 5 > | RITE Bel rn PUNE A pre Sn werner enews

Kleppe v. Sierra Club, 427 U.S. 390 (1976).........00++

Marsh v. Oregon Natural Res. Council, 490

CE Fe sehen scsath stncecsincsonesinensesdiienbetapeictebiaiens

Massachusetts v. Watt, 716 F.2d 946 (lst

ae WI sc scst coekcetetdesdectinetncetnnssieceheettncnserneiueaentasarcion

National Audubon Soc’y v. Hoffman, 132

FD FT Cs Fe insists actsnsinceshcnsaiescuscnvessenaniancnen

North Carolina v. FAA, 957 F.2d 1125 (4th

Che, NORD serinsis chick cases nasassancadisdebsactansecedigintios

Robertson v. Methow Valley Citizens Coun-

CAE I, Pe CC ieiiinnccternsitrsttesstantcinioresremnntess

Sierra Club v. Hodel, 848 F.2d 1068 (10th

Cir. 1988), overruled on other grounds,

Marsh v. Oregon Natural Res. Council,

EE Fe nics tice taint teieniinstleinanncntction

Sierra Club v. Marsh, 872 F.2d 497 (Ast Cir.

I iiicnccaiaciiniccsaiknsncesionnisiedisieisasihciheniakstaoninnsesntdasannebaces

Sierra Club v. United States Army Corps of

Eng’rs, 772 F.2d 1043 (2d Cir. 1985)..........:sssseeee

Town of Huntington v. Marsh, 884 F.2d 648

(2d Cir. 1989), cert. denied, 494 US.

SOIR CR ivceinccsnenasnisncrsiiescrentewsnancensiiepbvumtonasesncanevsnns

Vv

TABLE OF AUTHORITIES—Continued

US Ecology, Inc. v. United States Dep't of

Interior, 231 F.3d 20 (D.C. Cir. 2000).........:ccceeeeeee 2

Weinberger v. Catholic Action of Ha-

waii/Peace Educ. Project, 454 U.S. 139

OSGI in escscsiscarinosiasssaseadizidaiabasennsvaposensacensectancsoateneasennte 2

Weinberger v. Romero-Barcelo, 456 U.S.

DOD CAFE) cistenitcssesesasssvinanericsncssasianstagnisasinanatenstsines one 11

CONSTITUTIONAL AND STATUTORY

PROVISIONS:

National Environmental Policy Act, 42

U.S.C. § 4321 ef Sq. ..........cssrsocsscrseccecsesresscecrsesoocees 2

MD AEBS. BOGE E iccschinintsccstersisndeneciinvensinencenntanssentenesinions 2

MB UB ABBE cicccsetnsisnicneoncnsesseapecontnenesisusnescoontinceses 2

42 U.S.C. § 433 2(2[MC) ..ncececrcccenscrcrsecssescseressrsssecsrenscess 2,3

Pub. L. No. 107-63, 115 Stat. 414.0... ceccseeeeeeenees 10

RULE:

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REGULATIONS:

BO CBR. © 15GB S necncrnrcsocncsvcscesorscsorenssnncerersnsresdsogoses 2

40 C.F.R. § 1508.9 ..............ccccsscccscseccssrsrsssssrssesssesscsees 2

AO C.F.R. § 1508.14 ...........ccscsscscceccceccsrscscsssscecsesssoess 2

40 C.F.R. § 1508.27(0)(4)...........cccccceresrcsesceesseeseeseees 8

61 Fed. Reg. 11,428 (Mar. 20, 1996)...........:scsesseesees 5

61 Fed. Reg. 27,008 (May 30, 1996), codi-

fied at 36 C.F.R. § 13.65(0) ......:.eeeseseesesserersereeeeeenes 6

OTHER AUTHORITIES:

John Muir, Travels In Alaska, ch. XI ...........:seseeeeeeees 4

Fee enon en

EN ee

IN THE

Hupreme Court of the Anited States

No. 01-456

HOLLAND AMERICA LINE-WESTOURS, INC.,

Petitioner,

v.

NATIONAL PARKS AND CONSERVATION ASSOCIATION, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF IN OPPOSITION

Respondent National Parks Conservation Association

(NPCA) hereby opposes the petition for a writ of certiorari to

review the judgment of the United States Court of Appeals

for the Ninth Circuit.

INTRODUCTION

This case meets none of the criteria warranting certiorari.

See S. Ct. R. 10. The decision below does not conflict with a

case decided by this Court, or by any of the Courts of Ap-

peals. It does not present any unsettled issue of federal law.

What it does present is a commonplace, fact-bound applica-

tion of this Court’s decision in Amoco Production Co. v.

Village of Gambell, 480 U.S. 531 (1987), to the particular

2

facts of this National Environmental Protection Act (NEPA)

case.

COUNTERSTATEMENT

Statutory Background. The National Environmental

Policy Act, 42 U.S.C. §§ 4321 et seq., established a national

policy to “prevent or eliminate damage to the environment

and biosphere.” 42 U.S.C. § 4321. To fulfill its “broad

national commitment to protecting and promoting environ-

mental quality,” Robertson v. Methow Valley Citizens

Council, 490 U.S. 332, 348 (1989), NEPA directs federal

agencies, “to the fullest extent possible,” to prepare a detailed

Environmental Impact Statement (EIS) before commencing

any “major Federal actions significantly affecting the quality

of the human environment.” Jd. § 4332, § 4332(2)(C).' An

EIS must set forth, among other things, the “environmental

impact of the proposed action;” “any adverse environmental

effects which cannot be avoided should the proposal be

implemented;” and possible “alternatives to the proposed

action.” Id. § 4332(2\(C)i)-(iii); see also Kleppe v. Sierra

Club, 427 U.S. 390, 399-400 (1976).

Not every federal action requires an Environmental Impact

Statement; if an action will not “significantly affect[ ]” the

environment, no EIS is necessary. Agencies considering

whether to prepare an EIS often prepare “Environmental

Assessments,” or EAs, to determine whether the impact of a

proposed action warrants preparation of a full EIS. See 40

C.F.R. § 1508.9; Weinberger v. Catholic Action of Ha-

waii/Peace Educ. Project, 454 U.S. 139, 141 n.1 (1981). An

Environmental Assessment is a “less formal” document than

an EIS, US Ecology, Inc. v. United States Dep't of Interior,

231 F.3d 20, 22 (D.C. Cir. 2000), designed to “provide[]

sufficient evidence and analysis for determining whether to

| “Affecting means will or may have an effect on.” 40 C.F.R.

§ 1508.3 (emphasis added). The “human environment” is inter-

preted “comprehensively to include the natural and physical

environment and the relationship of people with that environ-

ment.” 40 C.F.R. § 1508.14.

3

prepare an EIS or a finding of no significant impact.” Blue

Mountains Biodiversity Project v. Blackwood, 161 F.3d

1208, 1212 (9th Cir. 1998), cert. denied, 527 U.S. 1003

(1999). When an agency prepares an Environmental As-

sessment and it appears that the “determination that a signifi-

cant impact will or will not result from the proposed action is

a close call, an EIS should be prepared.” National Audubon

Soc’y v. Hoffman, 132 F.3d 7, 13 (2d Cir. 1997) (citing

cases). If, on the other hand, an agency “decides that no

environmental impact statement is required because the

proposed action will not have a significant impact,” North

Carolina v. FAA, 957 F.2d 1125, 1128 (4th Cir. 1992), the

agency reports its decision in a “finding of no significant

impact,” or FONSI. 40 C.F.R. § 1508.9; see 42 U.S.C.

§ 4332(2)(C).

NEPA’s procedures are designed to fulfill NEPA’s ani-

mating purpose—to “ensure[ ] that the agency will not act on

incomplete information, only to regret its decision after it is

too late to correct.” Marsh v. Oregon Natural Res. Council,

490 U.S. 360, 371 (1989). By requiring an agency to assess

the degree of harm to the environment before it embarks on a

course of action that could adversely affect the environment,

NEPA ensures that the agency “will have available, and will

carefully consider, detailed information concerning signifi-

cant environmental impacts.” Robertson, 490 U.S. at 349.

NEPA’s “look-before-you-leap” provisions also are designed

to inform the general public, “guarantee[ing] that the relevant

information will be made available to the larger audience.”

Id. The Act thus “insures the integrity of the agency process

by forcing it to face those stubborn, difficult-to-answer

objections without ignoring them or sweeping them under the

rug.” Sierra Club v. United States Army Corps of Eng’rs,

772 F.2d 1043, 1049 (2d Cir. 1985).

The Park and the Bay. Glacier Bay National Park and

Preserve (the “Park”) spans over three million acres of

Alaska’s coast, stretching northward from Alaska’s inside

passage to the Alsek River and encircling the massive

saltwater bay that gives the Park its name. Glacier Bay

Fee SE TENORS ES)” OO So ee eee on ee

4

encompasses a fjord system extending more than sixty miles

inland; four of its fjords contain actively calving glaciers.

Pet. App. 3a. The Park has long been recognized as one of

our Nation’s most unique treasures, from the early voyages

of the explorer George Vancouver in 1794, to 1879, when

naturalist John Muir first traveled to Glacier Bay, through

today.2 The largest protected marine ecosystem in the

National Park system, the Park is host to a vast assemblage

of “wildlife species of inestimable value.” Pet. App. la.

Over two hundred species of fish, including the harbor

porpoise and the Minke whale, swim in its waters; dozens of

species of seabirds nest within Glacier Bay and along its

outer coast; and harbor seals and sea otters colonize the Bay.

The Steller sea lion, listed as an endangered species under the

Endangered Species Act, id. 3a n.1, feeds extensively in the

Bay. Among the Bay’s most unique species is the humpback

whale, one of the most endangered baleen whale populations

in the world. The humpback was placed on the endangered

species list in 1973, but population recovery has been slow;

the entire North Pacific population of humpback whales is

estimated to hover between 1,500 and 2,100. Jd. 3a; Ct. App.

E.R. 85.

The Vessel Management Plan. The Park’s geographic

contours are such that Glacier Bay provides the primary

means of access to the rest of the Park. Pet. App. 4a. An

array of vesseis, from massive cruise ships to small privately-

owned boats, access the Bay, particularly during the summer

season. In the late 1970s, in response to a decline in the local

humpback whale population, the Park Service began regu-

lating vessel entries into the Park by placing quotas on the

number of cruise ships, tour boats, charter vessels, and

private boats entering the Bay. Jd. Sa.

The Park Service publishes its vessel quotas in “Vessel

Management Plans.” The Vessel Management .Plan prior to

the one at issue here, promulgated in 1984, provided for a

2 See John Muir, Travels In Alaska, ch. X1 (“The Discovery of

Glacier Bay”) (“The view down the bay among the islands was, I

thought, the finest of this kind of scenery that I had yet observed”).

5

twenty-percent increase in vessel traffic to be implemented

over four years, from 1984 to 1988. Between 1988 and

1994, the number of vessels entering the Park held steady.

Because of larger cruise ships, however, the number of

passengers visiting the park increased substantially, rising

144 percent from 1980 to 1994.

In the early 1990s, the tourism industry began lobbying for

| an increase in cruise ship entry quotas in Glacier Bay. Ct.

| App. E.R. 31. In May 1995, the Park Service sought public

comment on a new Vessel Management Plan containing

several proposed alternatives to the then-existing Park vessel

restrictions. The alternatives ranged from a “no-action”

approach, e.g., maintaining vessel quotas at current levels, to

decreasing vessel entries, to.increasing seasonal cruise ship

entries by 72 percent. The Park Service identified the last

alternative—the 72 percent increase—as the one it preferred.

Pet. App. 8a.

The Park Service received hundreds of written comments

on its proposal. Approximately 85 percent of the comments

opposed it, and the vast majority of commenters favored the

proposal reducing the number of vessel entries to the Park.

Id. NPCA participated in the administrative proceedings. Jd.

In March 1996, the Park Service announced that it had

selected a modified version of its 72-percent-increase pro-

posal as the new Vessel Management Plan. 61 Fed. Reg.

11,428 (Mar. 20, 1996). Under the new Plan, the summer

seasonal cruise ship quota was immediately increased by 30

percent over 1995 levels for 1996 and 1997, and could

increase 72 percent above 1995 levels thereafter, contingent

| upon specified circumstances. With its announcement, the

Park Service issued a “Finding of No Significant Impact,” or

FONSI, announcing its conclusion that the new Vessel

Management Plan did not “constitute a major federal action

significantly affecting the quality of the human environ-

ment.” Ct. App. E.R. 249.

Notwithstanding the Park Service’s definitive finding of

“no significant impact,” the Environmental Assessment

6

accompanying the FONSI showed that the impact of the Plan

on Park resources was in fact unknown. The Park Service —

acknowledged, among other things, that the number of

collisions between whales and vessels could increase;

however “the degree of increase is unknown,” and that “(t]he

degree to which disturbance and displacement would affect

the humpback whale populations in Glacier Bay is un-

known.” Pet. App. 9a. The Park Service had much the same

to say about the Plan’s potential impacts on other wildlife in

the harbor, including the endangered Steller sea lion. Among

other things, the Park Service conceded that that “[l]ittle is

known about the effects of the disturbance” on the sea lion,

id. 8a; that the “effect of increased levels of disturbance” on

cetacean populations was “unknown,” id. 9a; that “little is

known about the effects of the disturbance” on the harbor

seal; that it was “unknown whether populations of marbled

murrelets and Kittilitz murrelets would change” with an

increase in vessel traffic; that the “overall effect on bald

eagle populations is unknown;” that “[i]t is unknown if

waterfowl populations would change under this alternative;”

and that “(t]he biological effects of * * * air pollutants from

stack emissions are unknown.” /d. 9a-10a (emphases added).

Despite all these unknown impacts—and many more not

enumerated here—the Park Service issued a “finding of no

significant impact.” Id. 10a.

Following the FONSI, the NPCA submitted further com-

ments to the Park Service, pointing out that a finding of no

significant impact based on unknown effects frustrates

NEPA’s animating purpose of ensuring that the agency take a

“hard look” at the environmental consequences of a proposed

action before action is taken. See id.; id. 12a. But in May

1996, the Park Service adopted, with minor changes, its new

Vessel Management Plan for Glacier Bay. 61 Fed. Reg.

27,008 (May 30, 1996), codified at 36 C.F.R. § 13.65(b).

Proceedings Below. Following the Park Service’s “find-

ing of no significant impact” and adoption of the Vessel

Management Plan, the NPCA filed suit against the Director

of the National Park Service and the Secretary of the Inte-

7

rior—the official responsible for the activities of the Depart-

ment of Interior in managing the National Park Service. Pet.

App. 10a-11a. NPCA alleged in its complaint that defendants

had violated the Administrative Procedure Act (APA) and

NEPA by issuing a finding of no significant impact, and thus

refusing to prepare an Environmental Impact Statement,

when the impacts of the Park Service’s proposed action on

Glacier Bay were concededly not known. NPCA’s request

for relief sought an injunction against the 1996 Vessel

Management Plan—thus returning vessel entries to the pre-

1996 levels—auntil a full EIS was prepared. /d. lla. Wes-

tours, a cruise ship operator, intervened as a defendant in the

proceedings. Jd.

The parties filed motions for summary judgment. Al-

though the district court acknowledged that “ ‘the effects

cruise ship operations have on Glacier Bay National Park and

the animals that live there are unknown,’ ” and that the EA

“ ‘contains a long list of uncertainties about the potential

effects of increased vessel traffic,’ ” it nonetheless concluded

that the Park Service was not required to prepare an EIS. /d.

(quoting district court opinion).

NPCA appealed.? The Ninth Circuit reversed. The court

of appeals unanimously held that the Park Service had

violated NEPA when it failed to prepare an EIS in the face of

its repeated conclusions that the effects of a vessel increase

on Glacier Bay were largely unknown. Pet. App. 15a-23a.

Noting that the Park Service had proposed a “park research

and monitoring program” to study the effects of vessel traffic

3 Petitioner states that in ing to NPCA’s l, it

asked the court to remand the issue of injunctive relief to the

district court for a hearing, and that NPCA “likewise asked the

court of appeals to remand the question of injunctive relief to the

district court.” Pet. 9 (emphasis added). Its characterization of

NPCA’s request for relief:is quite misleading. In its opening brief

and again on reply, NPCA asked the court of appeals to “reverse

the District Court and remand the case with instructions to enjoin

further implementation of the 1996 Vessel Management Plan until

a full Environmental Impact Statement is ” NPCA Br. at

57; NPCA Reply at 30. That is what the Ninth Circuit did.

on the Park’s wildlife and air and water quality, the court of

appeals observed that “[t]hat is precisely the information and

understanding that is required before a decision that may

have a significant adverse impact on the environment is

made, and precisely why an EIS must be prepared in this

case.” Jd. 17a (emphasis in original). Nor, the court con-

cluded, did the mitigating m ~ures proposed by the Park

Service relieve the Service {.__ . its obligations under NEPA;

its “speculative and conclusory statements” about the effi-

cacy of such measures were “insufficient to demonstrate that

the * * * measures would render the environmental impact so

minor as to not warrant an EIS.” Jd. 22a.4

The court of appeals next turned to NPCA’s request for

injunctive relief, applying the “traditional balance of harms

analysis” long used to determine the appropriateness of an

injunction. Jd. 26a. At the outset of its discussion, the court

of appeals quoted from this Court’s decision in Amoco

Production Co. v. Gambell, noting that “ ‘[e]nvironmental

injury, by its nature, can seldom be adequately remedied by

money damages and is often permanent or at least of long

duration, i.¢., irreparable.’ ” Jd. (quoting Amoco, 480 U.S. at

545). The court concluded that “NPCA has made the requi-

site showing for injunctive relief.” Pet. App. 26a. As it held,

an EIS was required to explore the environmental conse-

quences of the Park Service’s Vessel Management Plan.

Where an EIS was required, the court concluded, “allowing a

potentially environmentally damaging project to proceed

prior to its preparation runs contrary to the very purpose of

the statutory requirement.” Jd. 27a.

The court of appeals next examined the purported harm to

the defendants from entry of an injunction. The government

had asserted no such harm on appeal. Westours, for its part,

4 The court of ls also held that the Vessel Management

Plan was sufficiently controversial to warrant preparation of an

EIS. See 40 CFR. 1508.27(b A ( must consider “[t]he

degree to which the effects on ity of the human environ-

ment are likely to be highly coumeeniial™ in emery whether

to prepare an EIS). Pet. App. 23a-26a.

9

argued that the potential lost revenues it might suffer if the

Plan was enjoined outweighed the potential damage to the

environment from keeping the Plan in place. The court of

appeals rejected that argument, concluding that the potential

financial harm to Westours from a decrease in its allotted

entries “fails to tilt the balance of harms in its favor.”> Jd.

28a. The Ninth Circuit also considered and rejected evidence

Westours submitted on appeal purporting to show that the

humpback whale population had remained stable over the

short term, noting that the evidence “completely fail[ed] to

address the other environmental effects at issue here.” Jd. at

28a-29a.

The court of appeals noted that in some “unusual circum-

stances,” it might opt to withhold an injunction in a NEPA

case or to limit its scope. /d. 27a n.18. Those circumstances

were not present here, the ccurt concluded; accordingly,

having “fully weighed the competing interests using [its]

traditional equitable jurisdiction,” as this Court directed in

Amoco, the Ninth Circuit concluded that “injunctive relief is

appropriate.” Jd. :

The Ninth Circuit also held that it was appropriate for it to

decide the appropriate scope of relief at the appeal stage.

There were no “intensely factual questions” that warranted

sending the case back to the district court to determine the

proper scope of the injunction; rather, “the scope of the

injunction to which NPCA is entitled is quite plain.” Jd.

29a. The court of appeals accordingly directed the district

court to enjoin the increases in vessel traffic under the 1996

Vessel Management Plan (while leaving in place its mitigat-

ing measures, as the government suggested), and to return

vessel traffic “to its pre-1996 levels.” Jd. Recognizing that

its procedures for rehearing could delay the return of the case

5 In addition, observing that NPCA first sought an injunction

against the plan five years before the Ninth Circuit’s decision, the

Ninth Circuit stated that “neither Westours nor those of its passen-

gers who may be unable to view Glacier Bay at the time they

originally planned have cause to claim surprise as a result of any

injunction.” Jd. 28a.

(EE ee

10

to the district court, the court of appeals left the exact timing

of the injunction open on remand, “leav[ing] it to the district

court to decide upon the effective date of the injunction * * *

and specifically, to decide in its informed discretion *

* * whether the injunction should take effect prior to the

completion of this year’s cruising season.” Jd. 30a.

The government and Westours sought rehearing and re-

hearing en banc. Their petitions were denied without dissent.

Id. 34a.

On remand, after briefing and argument, the district court

ruled from the bench that the Park Service and Westours had

not advanced sufficient evidence of harm to their operations

to warrant postponing the injunction until next cruise season.

It ordered the injunction to issue effective immediately. Pet.

App. 73a.®

Westours, the intervenor below, has now petitioned for

certiorari. The Department of Interior and the Director of the

National Park Service—the defendants below—have not.

REASONS FOR DENYING THE WRIT

Westours does not challenge the Ninth Circuit’s determi-

nation that the Park Service violated NEPA when it failed to

prepare an Environmental Impact Statement before approv-

ing a substantial increase in vessel traffic into Glacier Bay.

Westours contends only that the court of appeals “signifi-

cantly relax[ed] the standards in the Ninth Circuit for ob-

taining injunctive relief in environmental cases.” Pet. 14.

That is wrong. The decision of the court of appeals was a

routine, fact-bound weighing of the evidence for and against

an injunction in this NEPA case. The court of appeals’s

decision does not conflict with—indeed, it repeatedly quoted

from—the relevant decisions of this Court. The decision

6 On November 5, 2001, a Department of Interior appropria-

tions bill was enacted with a rider purporting to preserve vessel

entries at 1996 levels until an EIS is completed. Pub. L. No. 107-

63, § 130, 115 Stat. 414.

11

does not conflict with that of any other court of appeals. It

presents no compelling issue of federal law. And it is also

correct.

I. THE DECISION BELOW DOES NOT

CONFLICT WITH THE DECISIONS OF THIS

COURT

This Court observed in Amoco Production Co. v. Village of

Gambell that “[e]nvironmental injury, by its nature, can

seldom be adequately remedied by money damages and is

often permanent or at least of long duration, i.e. irreparable.

If such injury is sufficiently likely, therefore, the balance of

harms will usually favor the issuance of an injunction to

protect the environment.” 480 U.S. at 545. The Court

cautioned, however, that courts reviewing requests for

injunctions in environmental cases must still engage in the

traditional balance of harms test before ordering that an

injunction issue. Jd. at 544 (rejecting argument that irrepara-

ble harm is “presumed” when an agency fails to evaluate the

environmental impact of its proposed action); see Weinber-

ger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) (injunctive

relief does not issue as a matter of course in environmental

litigation, but, as in other litigation, issues after the court

engages in a balancing of harms and concludes that an

injunction is appropriate).

That is exactly what the Ninth Circuit did in this case. The

court of appeals “fully weighed” the factors in favor of and

against an injunction. Pet. App. 27a n.18. It concluded that

environmental injury was likely, and it found that the balance

of hanns favored an injunction. Jd. 27a-28a.7? The court of

appeals acknowledged—just as the Court implicitly did in

7 Although Westours challenges the standards for granting

injunctive relief that the court of s used, Pet. 16-25, and the

procedures the court followed, id. 26-28, Westours is careful not to

challenge the Ninth Circuit’s underlying conclusion—that envi-

ronmental harm was sufficiently likely to warrant an injunction.

Westours’ careful circumvention of that crucial issue is under-

standable; that wholly fact-bound conclusion is even less appropri-

ate for certiorari treatment than the issues raised in the rest of its

petition.

12

Amoco—that in some “unusual” cases, an injunction might

not issue in response to potential environmental injury. Jd.

27a n.18; see Amoco, 480 U.S. at 545 (noting that in cases

where environmental injury is alleged and “sufficiently

likely,” “the balance of harms will usually favor the issuance

of an injunction”) (emphasis added). The Ninth Circuit

concluded, however, that those unusual circumstances were

not present in this case, and that an injunction was warranted.

Pet. App. 27a n.18.8

From the court’s elementary application of Amoco and the

traditional equitable factors used in analyzing a motion for

injunctive relief, Westours has cooked up an argument that

the Ninth Circuit actually “significantly relax[ed]” its stan-

dards for injunctive relief. Pet. 14. According to Westours,

the decision of the court of appeals adopted a “rule” that

absent “unusual circumstances,” courts “must enjoin gov-

ernmentally authorized” (but illegal) activity “whenever a

NEPA violation likely exists.” Jd. Westours further posits

that the Ninth Circuit’s decision did away with the “tradi-

tional balancing of equities” endorsed by this Court in Amoco

and other rulings. /d.; see also id. at 21-22.

The Ninth Circuit did no such thing. The court in fact

repeatedly stated that it was engaging in the “traditional

balance of harms analysis” used in actions for injunctive

relief. See, e.g., Pet. App. 26a; id. 27a n.18. The Ninth

Circuit also expressly followed this Court’s lead in Amoco, in

which this Court stated that the “usual[{]” remedy for likely

environmental injury was an injunction. 480 U.S. at 545.

The court of appeals concluded that such injury was likely, in

8 Petitioner suggests that the Ninth Circuit’s statement that an

injunction will not issue in “unusual” circumstances, is equivalent

to the rebuttable presumption found invalid in Amoco. That is not

correct. It may well be unusual (as this Court implicitly noted in

Amoco) for an injunction not to issue on a finding of a NEPA

violation, but if the facts support such a ruling, the injunction can

be denied. That is a far cry from a rebuttable presumption of an

injunction in environmental cases, which—prior to Amoco—

attached no matter what the individual facts.

13

light of the substantial increase in vessel traffic and the

conceded impacts of that traffic on Glacier Bay’s wildlife

and air and water quality. See Pet. App. 26a-27a, 30a. It

issued an injunction. That is the end of the story. The Ninth

Circuit’s decision in no way conflicts with Amoco or with

Romero-Barcelo. Westours’ portrayal of the Ninth Circuit’s

commonplace inquiry as a “[rjenegade” reshaping of the

standards for injunctive relief, Pet. 20, is pure fiction.

Ii. THE DECISION BELOW DOES NOT

CONFLICT WITH THE DECISIONS OF

OTHER COURTS OF APPEAL

Westours next takes aim at the Ninth Circuit’s purported

“misread[ing]” of the First Circuit opinion in Sierra Club v.

Marsh, 872 F.2d 497 (ist Cir. 1989). Writing for the court

of appeals in that case, then-Judge Breyer observed that

“ ‘when a decision to which l’=PA obligations attach is made

without the informed environmental consideration that

NEPA requires, the harm that NEPA intends to prevent has

been suffered.’ NEPA in this sense differs from substantive

environmental statutes.” Jd. at 500 (quoting Massachusetts

v. Watt, 716 F.2d 946, 952 (ist Cir. 1983)). As the Marsh

court recognized, “the harm at stake is a harm to the envi-

ronment, but the harm consists of the added risk to the

environment that takes place when governmental decision-

makers make up their minds without having before them an

analysis * * * of the likely effects of their decision upon the

environment.” Jd. (emphasis in original).

The Ninth Circuit in this case referred to Marsh in a foot-

note, noting that its reasoning “also justifies injunctive relief

in this case,” separate and apart from the Ninth Circuit’s

weighing of the factors for and against injunctive relief. Pet.

App. 27a n.18. Westours seizes on the Ninth Circuit’s

alternative ruling. It devotes several pages of its petition to

arguing that the court of appeals read Marsh to justify

injunctive relief whenever a NEPA violation occurs, and

suggests that its reading of Marsh has generated an “irrecon-

cilable” circuit conflict. Pet. 22-25. The Ninth Circuit did

14

not misread Marsh; that court's reasoning supports exactly

what the Ninth Circuit did in this case. The Ninth Circuit's

reading of Marsh is also beside the point, because its foot-

noted reference was expressly made separate from its deter-

mination, employing the traditional balance of harms test,

that injunctive relief was appropriate in this case. See Pet.

App. 26a-29a (applying traditional balance of harms analy-

sis); id. 27a & n.18 (noting, after concluding that “injunctive

relief is appropriate,” that Marsh “also justifies injunctive

relief in this case”) (emphasis added).

Nor does the Ninth Circuit's decision conflict with any

other decision from any other court of appeals. Westours’

petition singles out cases from the Second and (oddly) Ninth

Circuits in which the courts declined to issue an injunction

for putative violations of NEPA. See Pet. 23. The courts in

those cases engaged in the same balancing of harms as the

Ninth Circuit panel did here. They just reached different

results based on the different facts and circumstances pre-

sented in those cases. Courts of appeal uniformly acknow!l-

edge what this Court recognized in Amoco: when environ-

mental harm is sufficiently likely—and the Ninth Circuit so

found here—injunctive relief is appropriate. See, e.g., Town

of Huntington v. Marsh, 884 F.2d 648, 651 (2d Cir. 1989)

(noting that “injunctive relief has been used when appropriate

for violations of NEPA,” and citing Amoco), cert. denied,

494 U.S. 1004 (1990); Sierra Club v. Hodel, 848 F.2d 1068,

1097 (10th Cir. 1988) (affirming injunction for NEPA

violation and citing Amoco), overruled on other grounds by

Marsh v. Oregon Natural Resources Council, 490 U.S. at

377.

Ill. THIS CASE INVOLVES NO UNSETTLED

ISSUE OF NATIONAL IMPORTANCE

This case, in which the Ninth Circuit simply engaged in the

traditional balancing of harms and found an injunction

15

unsettled issue of federal law warranting review. The federal

government apparently agrees, having decided not to seek

certiorari itself.

Westours itself implicitly recognizes the limits of its argu-

ment that this case is deserving of certiorari. Westours points

out in its petition that when the district court enjoined the

Park Service from implementing the 1996 Vessel Manage-

ment Plan for the remainder of the season, “five cruise ships

operated by petitioner which had been scheduled to call on

Glacier Bay” had to sail elsewhere. Pet. 3. Next year, if the

injunction is in place for the full cruise season, presumably

about three times that number—fifteen Westours ships—will

visit ports of call other than Glacier Bay. That hardly pres-

ents an “extremely important question” warranting Supreme

Court intervention. Pet. 26. Westours also opines that,

unless this Court grants certiorari, “a single party will be able

to halt fishing and logging management, road construction,

and a host of other activities authorized by the government,

by filing a NEPA action and seeking an injunction.” Pet. 15.

That is exactly why NEPA was enacted; it ensures that the

government reckons with the consequences of its major

proposals before acting on them, and enables interested

parties to compel the government to engage in the NEPA

process if it fails to do so on its own. Westours’ complaint

that “a single party” should not be able to stop ongoing

violations of the environmental laws should be taken up with

Congress, not this Court.

Finally, Westours suggests that litigants are confused about

the procedures for seeking and defending against injunctive

relief in NEPA cases. Westours’ last-ditch suggestion that

this case presents an appropriate vehicle to “establish{] the

proper standards and procedure for injunctions in NEPA

cases” is ill-founded. Pet. 28. The procedures for obtaining

injunctive relief are and have been plain. The Ninth Cir-

9 Petitioner suggests that NPCA was required to demonstrate

irreparable environmental harm from the activities it sought to

16

cuit’s ruling was adverse to Westours. That does not make

its procedure suspect.

IV. THE DECISION BELOW WAS CORRECT

Finally, the Ninth Circuit’s decision was correct. The Park

Service issued its Vessel Management Plan in the face of a

host of unknowns about the harmful effects of the plan and

without benefit of a full EIS. The court of appeals concluded

that the Plan presented a sufficient likelihood of harm to

endangered humpback whales, endangered sea lions, myriad

other species in the Park, and the Park’s air and water qual-

ity, to warrant an injunction. Pet. App. 26a-29a. It properly

directed the district court to enter that injunction, having

concluded that the scope of the injunction to which NPCA

was entitled was “quite plain.”!° Jd. 29a; see also Citizen

enjoin. Pet. 24-25. That is incorrect, as the courts of appeal have

recognized. To require a plaintiff to demonstrate that an agency

action undertaken in violation of NEPA “will have particular

environmental effects” would be to require a plaintiff to “conduct

the same environmental investigation that he seeks in his suit to

compel the agency to undertake.” City of Davis v. Coleman, 521

F.2d 661, 671 (9th Cir. 1975) (emphasis in original); see Sierra

Club v. Hodel, 848 F.2d at 1097 (court applied traditional balanc-

ing test in NEPA case, found harm impossible to assess before

NEPA studies completed, and granted injunction). As the Cole-

” man court explained, “[c]ompliance with NEPA is a primary duty

of every federal agency; fulfillment of this vital responsibility

should not depend on the vigilance and limited resources of

environmental plaintiffs. It is the federal agency, not environ-

mental action groups or local government, which is required by

NEPA to produce an EIS.” 521 F.2d at 671.

10 Westours argues in passing that the court of appeals should

nse Samnanntied Oe one 50 SS Ae oe eee

injunctive relief. Pet. 27 & n.16. it~ Bage Keagerae

concluded that there was no need. Pet App. The Ni

nema og considered rene — saan’ sapstions of

the government having suc ons on

spa wel ex device tine uit

on regar. purported term increase in humpback

re gr See Pet. . 28a-29a (concluding that Westours’

“evidence fails to tilt the of harms in its favor”).

Advocates for Responsible Expansion, Inc. v. Dole, 770 F.2d

423, 443 (Sth Cir. 1985) (granting injunctive relief at appel-

late stage for NEPA violation, and citing cases). The decision

of the court of appeals was an appropriate and proper re-

sponse to the ongoing NEPA violation and the serious threat

to the Park it presented.

CONCLUSION

For the foregoing reasons, the petition should be denied.

* Counsel of Record

Respectfully submitted,

JAMES A. HOURIHAN*

SCOTT H. REISCH

CATHERINE E. STETSON

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5491

Counsel for Respondent

National Parks Conservation

Association