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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 534 U.S. 1104

## Text

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
STATEMEDNT.........:sscsscsssscscsscsscscssscssccscssersnsssescscrsoseees

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
THIS COURT .....cccccccsccscssccccsssssccsssecenssosssserssssoees

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

11

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17

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iV
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:
OE: De win viccecstetreilatrcstehncinnnnessiemnnnsimeniionnaenenine 1
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2470%3A3. Public record. Not legal advice.