Petition for Writ of Certiorari — Hale v. Kempthorne (No. 06-1475)

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061475 MAY 04 207

No. __QEFICE OF THE CLERK

In the

Supreme Court of the United States

JOSHUA HALE; JOSEPH HALE;

and ELISHABA HALE,

Petitioners,

Vv.

DIRK KEMPTHORNE, Secretary of the United

States Department of Interior; WILL TIPTON,

Acting Superintendent, Wrangell-St. Elias National

Park & Preserve; MARSHALL NEECK, Chief

Kanger, Wrangell-St. Elias National Park & Preserve;

DEPARTMENT OF THE INTERIOR; NATIONAL

PARK SERVICE; FRAN MAINELLA, Director of the

National Park Service; MARCIA BLASZAK, Regional

Director of the National Park Service, all in their official

capacities; NATIONAL PARKS CONSERVATION

ASSOCIATION; THE WILDERNESS SOCIETY; and

ALASKA CENTER FOR THE ENVIRONMENT,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

ellie

JAMES S. BURLING

Counsel of Record

Pacific Legal Foundation

3900 Lennane Drive, Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Petitioners

SSO

QUESTIONS PRESENTED

Petitioners seek adequate and feasible access to their

homestead via an established right-of-way within the Wrangell-

St. Elias National Park and Preserve (Park). In the Alaska

National Interest Lands Conservation Act (ANILCA), 16 -

U.S.C. § 3170(b), Congress directed that, “[n]otwithstanding

any other provisions of this Act or other law,” the Respondents

(Park Service) “shall” allow landowners “such rights as may be

necessary to assure adequate and feasible access” across

conservation lands. The questions presented are:

1. Does the National Environmental Policy Act (NEPA),

42 U.S.C. § 4321, et seq., allow the Park Service to deny

“adequate and feasible access” to privately owned land when

ANILCA expressly mandates that the Park Service cannot deny

“adequate and feasible access” “notwithstanding any other . . .

law?”

2. Isnormal use and routine maintenance ofa state-owned

right-of-way subject to federal approval and regulation?

3. May an appellate court base a decision on factual

determinations that were not reached by the trial court before it

mistakenly dismissed the case on jurisdictional grounds?

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Petitioners (Hales)

hereby state they have no parent companies, subsidiaries, or

affiliates that have issued shares to the public.

TABLE OF CONTENTS

Page

COI II vio viceenccdvccteansccccivens i

CORPORATE DISCLOSURE STATEMENT .............. ii

TABLE OF AUTHORITIES ..............ceccccececeees v

PETITION FOR WRIT OF CERTIORARI ...............-. 1

CPMUITE DELOW on. cc cccccccccccccccvcovccscecess 1

SE Ee ee eg TIS eo 2

STATUTORY PROVISIONS AT ISSUE ...............-.- 2

STATEMENT OF THE CASE ..................ceeeeeee 4

Bis PE 60:06 bce dovcccccccensevnsss 5

B. The Lower Court Decisions ..................-- .

REASONS FOR GRANTING THE WRIT .............."- 11

I. THIS COURT SHOULD ADDRESS THE

EXCEPTIONALLY IMPORTANT ISSUE

CONCERNING CONGRESS’ CAREFULLY

CRAFTED PROTECTION OF THE

ACCESS MANDATED IN ANILCA ..............- 11

I THIS COURT SHOULD GRANT REVIEW TO

RESOLVE THE CONFLICT BETWEEN THE

NINTH CIRCUIT’S OPINION AND TWO OF

THIS COURT’S DECISIONS CONCERNING

WHETHER CONGRESS INTENDED NEPA

TO OVERRIDE SUBSTANTIVE STATUTES ....... id

Il. THIS COURT SHOULD GRANT REVIEW TO

RESOLVE THE CONFLICT BETWEEN THE

NINTH CIRCUIT’S OPINION AND THE TENTH

CIRCUIT CONCERNING FEDERAL CONTROL

OVER STATE-OWNED RIGHTS-OF-WAY ........ 18

TABLE OF CONTENTS—Continued

Page

IV. THIS COURT SHOULD GRANT REVIEW

TO RESOLVE WHETHER AN APPELLATE

COURT MAY BASE AN OPINION ON

FACTUAL QUESTIONS NOT HEARD

OR REACHED BY THE TRIAL COURT ........... 21

CE 46606 00840 Ed ee saveccancesseessevesnste 23

TABLE OF AUTHORITIES

Page

Cases re

Cooper Industries, Inc. v. Leatherman Tool Group, Inc.,

Fe SED 56665 6b 00s rss ede convenes 22

Dep’t of Transportation v. Public Citizen,

FOF Ge PND oe be vecscccescnscceceees 14-15

Dickinson v. Zurko, 527 U.S. 150 (1999) ............. 22

First Options of Chicago, Inc. v. Kaplan,

EE is ccc s bens basa nsnnes 204s oe 22

Flint Ridge Development Company v. Scenic Rivers

Association of Oklahoma, 426 U.S. 776 (1976) ... 16-18

Hale v. Norton, 437 F.3d 892 (9th Cir. 2006) ........... 1

Hale v. Norton, 461 F.3d 1092 (9th Cir. 2006) .......... 1

Hale v. Norton, 476 F.3d 694 (9th Cir. 2007) ........ 2,18

Law Offices of Curtis V. Trinko, L.L.P. v.

Bell Atlantic Corp., 294 F.3d 307 (2d Cir. 2002),

rev'd in part by Verizon Communications, Inc. v.

Law Offices of Curtis V. Trinko, L.L.P.,

po ee. er re er err eee ere ree 23

N.H. Motor Transport Ass'n v. Town of Plaistow,

ge ee oe A | re ere err re rer er 23

Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988) ... 19

Southern Utah Wilderness Alliance v. Bureau of Land

Management, 425 F.3d 735 (10th Cir. 2005) ..... 18-20

United States v. Certain Land in City of Newark,

County of Essex, State of N.J.,

GIF Fe OPP OG, TUTE) occ cccccsdecscdepecs 23

TABLE OF AUTHORITIES—Continued

| Page

United States v. Students Challenging Regulatory

Agency Procedures, 412 U.S. 669 (1973) ........... 16

Statutes

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TNs cca ve snipes NEHER NOS ALC Cee 2

vcd in dew een eeseneeeeucseaenvean 3-4

ETE <u vatdhieGadovuskvwdaiwaecceaknns 3

DP LiMt eaciehUaher yuu warandedsakeeee cubes 3

Federal Land Policy and Management Act,

Pub. L. No. 94-579, 90 Stat. 2744 (1976) ............ 3

Rule

eG EE cn ee Ap aaks base on cews ceuawies 22

Miscellaneous

py EE EOTEE oo v.05) Vash eoccenccaeeeean 12-13

PETITION FOR WRIT OF CERTIORARI

Joshua Hale, Joseph Hale, and Elishaba Hale (Hales)

respectfully petition for a writ of certiorari to review the judg-

ment of the United States Court of Appeals for the Ninth

Circuit.’

OPINIONS BELOW

The Hales filed this action in the district court on

November 4, 2003. The Hales sought declaratory and

injunctive relief pursuant to Alaska National Interest and Lands

Conservation Act (ANILCA), 16 U.S.C. § 3101, et seq., and

former Revised Statute (R.S.) 2477 concerning the Park

Service’s authority to prohibit the Hales from accessing their

property via ovérland motorized means, other than by snow

machine in winter.

The Ninth Circuit Court of Appeals’ initial opinion is

reported at Hale v. Norton (Hale I), 437 F.3d 892 (9th Cir.

2006), and is reproduced herein at Appendix (App.) C. The

Ninth Circuit’s subsequent opinion, denying the Hales’ Petition

for Rehearing and Petition for Rehearing En Banc and

withdrawing and replacing its previous decision is reported at

Hale v. Norton (Hale I), 461 F.3d 1092 (9th Cir. 2006), and is

reproduced herein at App. B.

On October 2, 2006, the Ninth Circuit ordered the parties

to submit simultaneous briefing concerning whether the court

should rehear the case en banc. The Court did not rehear the

case, but on February 5, 2007, the Ninth Circuit withdrew and

' Joseph Hale and Elishaba Hale changed their names from Nava S.

Sunstar and Butterfly Sunstar, respectively, during the course of this

litigation. These name changes were approved by the Alaska state

trial court, Case Nos. 3PA-05-02040 CI and 3PA-07-00958 CI,

respectively.

replaced its /...\~ st 25, 2006, opinion, issuing a third decision,

Hale ITI, reproduced in App. A. Hale v. Norton (Hale III), 476

F.3d 694 (9th Cir. 2007). This revised decision was based, in

part, on new findings on disputed factual issues that had not

been reached by the trial court, had not been the subject of any

evidentiary hearings, and had not been established as a

prerequisite to any summary judgment motion (there was no

such motion).

The district court’s opinion denying declaratory and

injunctive relief is included herein at App. D. The district

court’s opinion denying the Hales’ Motion for Reconsideration

is included herein at App. E.

The permit the Park Service offered the Hales is

reproduced herein at App. F.

JURISDICTION

This case was filed in the United States District Court for

the District of Alaska. The statutory basis for the district

court’s jurisdiction was 28 U.S.C. § 1331, due to the presence

of a federal question, and 28 U.S.C. § 2201 (declaratory relief).

This Court possesses jurisdiction pursuant to 28 U.S.C. § 1254.

STATUTORY PROVISIONS AT ISSUE

The Alaska National Interest and Lands Conservation Act

(ANILCA) provides in pertinent part:

Notwithstanding any other provision of this Act

or other law, in any case in which .. . privately

owned land .. . is within . . . one or more

conservation system units ... the... private owner

. . - Shall be given . . . such rights as may be

necessary to assure adequate and feasible access for

economic and other putposes to the concerned land

by such . . . private owner .... Such rights shall be

subject to reasonable regulations issued by the

Secretary to protect the natural and other values of

such lands.

16 U.S.C. § 3170(b).

R.S. 2477, Rights-Of-Way and Other Easements in Public

Lands, Mining Act of 1866, 43 U.S.C. § 932. Act repealed by

the Federal Land Policy and Management Act (FLPMA) on

October 21, 1976 (Pub. L. No. 94-579, sec. 706(a), 90 Stat.

2744, 2793) preserving valid rights-of-ways existing under

43 U.S.C. § 932 at the date of its approval. 43 U.S.C. § 1701,

note. R.S. 2477 provides in entirety:

The right-of-way for the construction of highways

over public lands, not reserved for public uses, is

hereby granted.

43 U.S.C. § 932.

The National Environmental Policy Act (NEPA) provides

in pertinent part: |

The Congress authorizes and directs that, to the

fullest extent possible: . . . (2) all agencies of the

Federal government shall—

or report on . . . major Federal actions

significantly affecting the quality of the

human environment, a detailed statement

by the responsible official on—

(i) the environmental impact of the

proposed action,

(ii) any adverse environmental

effects which cannot be avoided should

the proposal be implemented,

(iii) alternatives to the proposed

action,

(iv) the relationship between local

short-term uses of man’s environment and

the maintenance and enhancement of

long-term productivity, and

(v) anyirreversible and irretrievable

commitments of resources which would

be involved in the proposed action should

it be implemented. —

42 U.S.C. § 4332.

STATEMENT OF THE CASE

ANILCA was the product of an intense congressional

battle. To overcome opposition from a majority of Alaska’s

citizens, Congress included certain provisions specifically

designed to address Alaskans’ concerns of use and access. See,

e.g., 16 U.S.C. § 3170(b). This congressional compromise

provided the public with tens of millions of acres of new parks,

yet Congress also afforded Alaskans unique and special rules

enabling continued use and access to private property within

these vast new parks. ANILCA guaranteed that Alaskans shall

retain the rights necessary to secure adequate and feasible

access, subject only to reasonable regulation.

The Hales accept that under ANILCA the Park Service

may reasonably regulate their access. Indeed, Congress

provided the Park Service with authority in ANILCA “to

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

§ 3170(b). But the Hales contend that, in exercising its

authority to protect the Park’s values, the Park Service must

also uphold the promise of access Congress deemed so

important and, thus, may not deny adequate and feasible access.

The Park Service denied the Hales adequate and feasible access

by requiring a NEPA environmental review, subjecting their

right of access to unreasonable regulation. The Park Service’s

regulation of the Hales’ access violated ANILCA’s access

guarantee, exceeded its ANILCA authority to protect Park

values, and constitutes per se unreasonable regulation.

A. Factual Background

The Hales own land within the Park.” Their inholding lies

approximately 13 miles from McCarthy, Alaska, and is

accessible by a single road, the McCarthy-Green Butte Road

(Road), which crosses the Park.’ During the spring and summer

of 2002, after purchasing the property, the Hales used and

maintained the Road without incident, using motorized vehicles

when necessary.‘

In April, 2003, the Hales’ home burned to the ground,

destroying practically everything the Hales owned.’ After the

Hales’ home burned, they attempted to travel the Road in order

to obtain urgently needed supplies and building materials.° To

transport the large and cumbersome materials needed to rebuild

their home and supply their needs, the Hales required the use of

a motorized, tracked vehicle, a bulldozer, with its blade up, to

2 App. A at A-3.

3 Id.

* App. D at D-3.

> App. A at A-3.

® App. D at D-3 and A at A-3.

pull the loaded 16-foot trailer over the mountainous road.’

However, the Park Service posted a public notice permanently

prohibiting use of motorized vehicles on the Road, other than

snow machines in winter, thereby preventing the Hales’ use of

their motorized vehicle to obtain their needed supplies.’

The Park Service then informed the Hales they needed a

one-time permit for motorized access of the Road.’ After

securing temporary shelter, the Hales began trying in July,

2003, to obtain the permit from the Park Service.'° The Hales

requested a permit on an expedited basis as the Road, even via

motorized, tracked vehicle, becomes treacherous during the

winter."

. The Park Service did not cooperate in allowing the Hales

adequate and feasible access.’ Instead, the Park Service

decided that before issuing a permit decision, it must conduct

an environmental review pursuant to NEPA, issue a formal

environmental assessment (analysis), and publish it for

public comment.’ With the window of safe and feasible

access closing, the Hales urgently sought an emergency permit

in September, 2003." But on September 29, 2003, then on

October 2, 2003, and again on October 29, 2003, the Park

7 App. F at F-2.

* App. D. at D-3 and A at A-3.

_% pom A at A-3.

” =

12 Td. at A-3, 4.

'3 Id. at A-4.

4 Td. at A-3.

Sanne vefned to alow wequate wd feaasilole access becwuse

the Hale’s situation did not fall into NEPA’s emergency

exceptions and they refused the Hales access without a permit.'*

The Park Service claimed it could complete its NEPA

analysis and issue a permit decision in nine weeks. However,

the Park Service released the results of its NEPA analysis five

months after the Hales first sought a permit, and did not issue

a@ permit until almost an additional three months later.'’ The

Park Service offered a temporary, one-time permit valid for one

year only valid between March 12, 2004, to April 15, 2004, and

from October 20, 2004, to March 12, 2005, and only for 18 one-

way trips using a tracked vehicle pulling a trailer."* Otherwise

the Park Service allowed access only by air, foot, and horseback

in the summer, and snowmachine in the winter when the ground

was frozen."

The Hales did not accept the permit offer because it did

not provide adequate and feasible access.” Under the Park

Service’s interpretation of its authority, a second attempt to

obtain adequate and feasible access will require the Hales to

(1) apply for another permit; (2) await another NEPA analysis;

and (3) again submit to unreasonable conditions that prevent

adequate and feasible access.

5 App. A at A-4.

16 Id.

7 App. F.

'8 Td. at F-1, 5.

19 Td. at F-4.

2 Id. at F-4 to F-9.

The Park Service violated the mandatory access provision

Congress placed in ANILCA, granting reasonable and feasible

access, by subjecting the Hales’ access to their property to a

NEPA analysis and the resulting access restrictions. The Hales

required access during the summer, before harsh winter

conditions prevented safe access. The Hales’ access required

use of their motorized, tracked vehicle because it can readily

ford open water (the Road crosses McCarthy Creek a number

of times) and because it can pull he heavy large materials,

building supplies, fuel and food, that the Hales need to

transport.

The only forms of access the Park Service allows

inholders without a permit, are horseback and foot, which are

wholly inadequate and infeasible for the Hales to use because

neither they nor horses can adequately transport the needed

materials. Snow machine use is also inadequate and infeasible

because snow machines can be used only in certain restricted

wintertime conditions when travel is treacherous, especially

with large materials over mountainous roads. So long as the

Park Service requires a NEPA analysis before allowing

adequate and feasible access, the Park Service violates

ANILCA and Congress’ guarantee of adequate and feasible

access, and exceeds its discretion to reasonably regulate access.

B. The Lower Court Decisions

The Hales asked the district court to declare that ANILCA

provided them the right to continue using a motorized vehicle

on the only road accessing their land and to enjoin the Park

Service from preventing them from accessing their land over

the road by any method other than foot, horseback, or snow

machine. The Hales relied on the Park Service’s legal

obligations under ANILCA and former R.S. 2477. The Hales

contended that, with these statutes, Congress commanded the

Park Service to allow adequate and feasible access to owners of

private land within national parks and preserves.

The district court denied the Hales relief and dismissed

their case, finding that it had no jurisdiction and the Hales’

access rights were subject to “reasonable regulation.””’ The

Hales filed a motion for reconsideration, which the district court

denied.” The court did not make any factual findings. In fact,

it expressly eschewed reaching any factual conclusions

regarding the reasonableness of the Hales’ access: “The Court

has yet to visit the site and cannot therefore render a personal

Opinion with regard to the reasonableness of various modes of

travel.”

The Hales filed a notice of appeal and an emergency

motion for an injunction pending appeal under Ninth Circuit

Rule 27-3. In a summary order, the Ninth Circuit denied the

motion for emergency relief and dismissed the Hales’ appeal.

The Hales filed a motion for reconsideration, which the

court granted and reinstated the Hales’ appeal. The Hales’

appeal concerned the Park Service’s decision that it would not

allow the Hales adequate and feasible access to their property

without first completing a NEPA analysis. The Hales contend

that Section 1110(b) of ANILCA, entitled, “Special Access and

Access to Inholdings,” commands the Park Service to provide

such rights as necessary to assure adequate and feasible access

to private landowners notwithstanding any other law. 16 U.S.C.

§ 3170(b). This congressional guarantee of access limits the

Park Service’s regulatory discretion such that reasonable

regulation, allowed under ANILCA, could not deny adequate

and feasible access for rebuilding the Hales’ home, and

specifically foreclosed the Park Service’s ability to deny

adequate and feasible access pending completion of a NEPA

review.

21 App. A at A-S.

2 App. E.

3 Id at E-3,47.

The Ninth Circuit held (Hale J) that (1) the court lacked

jurisdiction to reach the merits of the case because the Park

Service had not issued a permit granting or denying the Hales’

access; (2) the Hales’ access to their property was subject to

reasonable regulation under ANILCA; and (3) the Park Service

could regulate the Hales’ use of the Road even if the Road

existed as a valid R.S. 2477 right-of-way.”

The Hales filed a petition for rehearing and for rehearing

en banc. In denying the Hale’s petition, the Ninth Circuit also

withdrew its decision in Hale J and issued an amended opinion

Hale II.* The Ninth Circuit’s subsequent opinion differed from

its first in determining that it possessed jurisdiction to reach the

merits of the case.” However, Hale II affirmed the previous

holdings that (1) the Park Service may condition the Hales’

ANILCA access rights on a NEPA analysis, despite Congress’

mandate that ANILCA ensures adequate and feasible access

notwithstanding any other law; and, (2) the Park Service could

regulate the Hales’ use of the Road even if the Road existed as

a valid R.S. 2477 right-of-way.”

After the Hales petitioned for a writ of certiorari,” on

October 2, 2006, the Ninth Circuit contacted the parties and

directed them to file new briefing to decide whether the case

should be reheard en banc. On February 5, 2007, the Ninth

Circuit withdrew and replaced its previous decision with Hale

III. This third opinion of the Ninth Circuit affirmed its decision

in Hale II, but found that the Park Service’s requirement that a

* App. C at C-4 to C-5.

25 App. B at B-2.

6 Id. at B-4 to B-8.

27 Td. at B-8 to B-11.

28 No. 06-090.

NEPA analysis be performed with a routine permit application

was not a per se violation of ANILCA’s requirement of

reasonable and feasible access.

The Ninth Circuit also, for the first time in this litigation,

made several factual determinations to support its holding. It

found that the “trips contemplated by the Hales threatened to

cause significantly more environmental damage than would be

caused by the more usual post-freeze up runs.”” It also found

that “the Hales’ principal justification for this [the Hales’)

request—that it was more dangerous to drive in the

winter—makes no sense to those experienced with conditions

in Alaska.”

On February 20, 2007, the Hales withdrew their petition

in No. 06-090, based on the withdrawal by the Ninth Circuit of

Hale II. The petition now being filed with this Court stems

from Hale IT.

REASONS FOR GRANTING THE WRIT

THIS COURT SHOULD ADDRESS

THE EXCEPTIONALLY IMPORTANT

ISSUE CONCERNING CONGRESS’

CAREFULLY CRAFTED PROTECTION

OF THE ACCESS MANDATED IN ANILCA

ANILCA allows the Park Service to reasonably regulate

access. However, the Park Service’s requirement of a

NEPA review exceeds its regulatory discretion and eviscerates

Congress’ carefully crafted balance in ANILCA between

reasonable regulation and mandatory access. The core of this

—P

29 See App. A at A-11 (9th Circuit’s conclusions).

dispute is whether Congress’ grant to the Park Service of the

authority to reasonably regulate access also provides the Park

Service with discretion such that it can violate Congress’

guarantee of adequate and feasible access. Although the Park

Service possesses authority under ANILCA to reasonably

regulate access, and to protect Park values, ANILCA limits the

Park Service’s regulatory discretion such that it may not deny

adequate and feasible access. In short, access does not remain

adequate and feasible during NEPA review because owners are

totally deprived of the statutorily mandated right during the

review.

In ANILCA, Congress already balanced environmental

protection with citizens’ right to access their property—

allowing “reasonable regulation” to protect park values. The

words Congress chose to guarantee access are

significant—Congress’ guarantee commands the Park Service

to grant that access which is adequate and feasible under the

circumstances—notwithstanding any other law. 16 U.S.C.

§ 3170(b). The Park Service cannot burden access with

requirements that render it inadequate or infeasible, thereby

violating Congress’ mandate that the Park Service “shall

[grant] . . . adequate and feasible access.” Id.

Congress did not give the Park Service discretion to deny

adequate and feasible access by unreasonably regulating access

to inholdings. As the Senate explained upon passage of

ANILCA:

The subsection on access to inholdings,

provides that, where a State or private interest in

land is surrounded by one or more conservation

system units, . . . the Secretary shall grant the owner

of the private interest such rights as may be

necessary to assure adequate access for economic

and other purposes.

S. Rep. 96-413, at 248 (1979).

The Committee Reports accompanying ANILCA indicate

Congress limited the Park Service’s discretion to regulate

access to inholdings:

This provision directs the Secretary to grant the

owner of an inholding such rights as are necessary

to assure adequate access to the inholding, and is

intended to assure a permanent right of access to the

concerned land across, through or over these Federal

lands by such State or private owners or occupiers

and their successors in interest. The Committee

recognizes that such rights may include the right to

traverse the Federal land with aircraft, motor boats,

or land vehicles, and to use such parts of the Federal

lands as are necessary to construct safe routes for

such vehicles.

Id. (emphases added).

Congress took care to explain the reasoning for granting

such extraordinarily broad access rights to inholders:

The Committee enacted this provision in

recognition of the fact that restrictions placed on

public access on or across many federal land areas in

Alaska may interfere with the ability of private

inholders to exercise their right to use their lands.

The Committee believes that owners of inholdings

should not have their ability to enjoy their land

reduced simply because restrictions are placed on

general public access to the land surrounding their

inholdings.

Id. (emphases added). Thus, although the Park Service may

restrict the public’s access to the Park, it may not restrict the

access of inholders such as the Hales. Clearly, “(t]he

Committee adopted a specific standard regarding access” and

“expects the Secretary to be reasonable and fair in his

judgments regarding access.” Id.

The Park Service’s actions in this case exist in stark

contrast to Congress’ commands. Their home having burned

down, the Hales desperately need a reasonable and feasible way

to bring in building supplies before the onset of winter. At

every turn, the Hales were met with resistance and the ultimate

requirement that there could be no meaningful access until the

Park Service completed a drawn out environmental review

under NEPA.

The Park Service denied the Hales their right of “adequate

access for economic or other purposes.” Pursuant to Congress’

guarantee, the Hales sought to use a land vehicle to access their

property. But, despite Congress’ direction, the Park Service

refused to recognize such a right, and instead the Park Service

ignored Congress’ command and denied access except by foot,

horseback, or snow machine in winter. The Park Service’s

denial of the Hales’ access by motorized vehicle violates the

mandatory, nondiscretionary access provisions Congress

mandated in ANILCA.

For these reasons, this Court should address this important

question to ensure that while the Park Service protects park

values pursuant to its ANILCA authority, that it also grants

landowners adequate and feasible access, thereby upholding

Congress’ guarantee and respecting Congress’ carefully crafted

balance between access rights and environmental protection.

THIS COURT SHOULD GRANT REVIEW TO

RESOLVE THE CONFLICT BETWEEN THE

NINTH CIRCUIT’S OPINION AND TWO OF

THIS COURT’S DECISIONS CONCERNING

WHETHER CONGRESS INTENDED NEPA

TO OVERRIDE SUBSTANTIVE STATUTES

Less than three years ago, this Court unanimously reversed

the Ninth Circuit’s interpretation of NEPA. See Dep’t of

Transportation v. Public Citizen, 541 U.S. 762 (2004). The

issue this Court addressed in Public Citizen was whether NEPA

and the Clean Air Act “require[s} the Federal Motor Carrier

Safety Administration to evaluate the environmental effects of

cross-border operations of Mexican-domiciled motor carriers”

before deciding whether to grant registration to Mexican

trucks. Jd. at 756. Like ANILCA in this case, the Safety

Administration’s governing statute instructs that the agency

“shall” grant registration to any motor carrier meeting certain

criteria. Id. at 766. This Court held that “where an agency has

no ability to prevent a certain effect due to its limited statutory

authority over the relevant actions, .. . under NEPA .. . the

agency need not consider these effects in [an environmental

analysis] when determining whether its action is a ‘major

Federal action.’” Jd. at 770 (citation omitted).

Upholding the Safety Administration’s decision to grant

registration without considering the environmental impact of

Mexican trucks, this Court stressed that

[the agency] has only limited discretion ...: It must

grant registration to all domestic or foreign motor

. Carriers that are “willing and able to comply with”

the applicable . . . requirements. [The agency] has

no statutory authority to . . . establish environmental

requirements unrelated to motor carrier safety.

Id. at 758-59 (citation omitted). This Court concluded:

Hence, under NEPA .. . the agency need not .

consider these effects .... [B]ecause [the

agency] has no discretion to prevent the entry of

Mexican trucks, [fit] did not need to consider the

environmental effects arising from the entry.

Id. at 770.

This Court’s holding in Public Citizen applies equally to

this case: Because the Park Service has no discretion under

ANILCA to deny adequate and feasible access, the Park Service

could not utilize a lengthy NEPA environmental review to deny

the Hales’ access. Because Congress has not repealed the

command “shall” in ANILCA, this case is similar to Public

Citizen. “Shall” means, as it did in Public Citizen, that the Park

Service has no discretion to deny adequate and feasible access.

Just as in Public Citizen, the Park Service’s action—granting

adequate and feasible access to inholders—is not a legally

relevant “cause” of any impact on the Park’s environment

because the Park Service had no discretion to deny adequate

and feasible access. Accordingly, the Park Service’s obligation

to grant adequate and feasible access was not subject toa NEPA

analysis and is inconsistent with Congress’ ANILCA mandate.

As a result, the Ninth Circuit’s decision conflicts with this

Court’s unanimous decision.

Indeed, in United States v. Students Challenging

Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973),

this Court addressed the issue of whether the Interstate

Commerce Commission was required to perform NEPA

analysis when issuing orders. According to the Court,

_ {t]he statutory language [of NEPA], in fact, indicates

that NEPA was not intended to repeal by implication

any other statute. Thus, 42 U.S.C. § 4335 specifies

that “[t]he policies and goals set forth in (NEPA)

are supplementary to those set forth in existing

authorizations of Federal agencies,” and 42 U.S.C.

§ 4334 instructs that the Act “shall (not) in any way

affect the specific statutory obligations of any

Federal agency... .”

Id. at 694.

Likewise, in Flint Ridge Development Company v. Scenic

Rivers Association of Oklahoma, 426 U.S. 776 (1976), this

Court addressed the issue of whether the Department of

Housing and Urban Development (HUD) was required to

comply with NEPA before allowing a disclosure statement filed

with it by a private real estate developer pursuant to the

Interstate Land Sales Full Disclosure Act to become effective.

Holding that HUD was not required to comply with NEPA

before allowing a disclosure statement to become final, this

Court held that “where a clear and unavoidable conflict in

statutory authority exists, NEPA must give way.” Jd. at 788.

The Court held that such a conflict between NEPA and the

Disclosure Act existed, and as such NEPA must give way

because

[i]t is inconceivable that an environmental impact

statement could, in 30 days, be drafted, circulated,

commended upon, and then reviewed and revised in

light of the comments.

Id. at 788-89.

Accordingly, this Court concluded:

In sum, even if the Secretary’s action in this case

constituted major federal action significantly

affecting the quality of the human environment so

that an environmental impact statement would

ordinarily be required, there would be a clear and

fundamental conflict of statutory duty. The

Secretary cannot comply with the statutory duty to

allow statements of record to go into effect within 30

days of filing . . . and simultaneously prepare impact

statements on proposed developments. In these

circumstances, we find that NEPA’s impact

statement requirement is inapplicable.

Id. at 791.

A similar conflict exists in this case. ANILCA commands

the Park Service to allow adequate and feasible access to

property owners. Yet, the Park Service denied the Hales’

adequate and feasible access by requiring a NEPA analysis.

Moreover, it took the Park Service five months to release the

results of its NEPA analysis and finally offer the Hales a —

temporary access permit.”' The Park Service cannot comply

with Congress’ statutory command to allow adequate and

feasible access and also perform a NEPA analysis.

As a result, a NEPA analysis is inapplicable and “NEPA

must give way.” Flint Ridge, 426 U.S. at 788. Nowhere in

NEPA’s terms did Congress indicate it intended to provide the

Park Service with authority it had limited in ANILCA.

Accordingly, this Court should resolve the conflict between the

Ninth Circuit and this Court’s opinions concerning whether

Congress limited NEPA review in the ANILCA mandate to

allow adequate and feasible access.

THIS COURT SHOULD GRANT

REVIEW TO RESOLVE THE CONFLICT

BETWEEN THE NINTH CIRCUIT’S

OPINION AND THE TENTH CIRCUIT

CONCERNING FEDERAL CONTROL

OVER STATE-OWNED RIGHTS-OF-WAY

The Ninth Circuit’s decision held that “even if the Hales

have a valid right-of-way over the [Road]}—which we do not

decide—the existence of that right-of-way would not shield

them from reasonable regulation by the [Park Service].”

Hale Il, 476 F.3d at 699. In so holding, the Ninth Circuit’s

decision conflicts with Southern Utah Wilderness Alliance

(SUWA) v. Bureau of Land Management, 425 F.3d 735 (10th

Cir. 2005).

SUWA arose when county road crews entered public lands

managed by the Bureau of Land Management (BLM) and

graded 16 roads. SUWA, 425 F.3d at 742. Nine of the roads

were within the Grand Staircase-Escalante National Monument.

Id. The counties did not notify BLM in advance, or obtain

permission to grade the roads. Jd. With few exceptions, the

31 App. F.

counties had not previously graded any of the roads. Jd. SUWA

filed suit, alleging the counties had engaged in unlawful road

construction activities and that BLM violated its duties under

NEPA by not taking action against the counties. Jd. The

counties contended their activities were lawful because they

occurred within R.S. 2477 rights-of-way. Id.

The Tenth Circuit determined that SUWA’s claims, in part,

presented an issue of the scope of the R.S. 2477 rights-of-way:

[T]he scope of an R.S. 2477 right of way is limited

by the established usage of the route as of the date of

repeal of the statute. That did not mean, however,

that the road had to be maintained in precisely the

same condition it was in on October 21, 1976; rather,

it could be improved “as necessary to meet the

exigencies of increased travel,” so long as this was

done “in the light of traditional uses to which the

right-of-way was put” as of repeal of the statute in

1976.

Id. at 746 (quoting Sierra Club v. Hodel, 848 F.2d 1068, 1083

(10th Cir. 1988)). Accordingly, the Tenth Circuit held that

unless the holder of an R.S. 2477 right-of-way across federal

land proposes to undertake improvements in a right-of-way

beyond mere maintenance, the holder need not obtain approval

from the federal land management agency. /d. at 748. The

Tenth Circuit explained that, in drawing the line between

routine maintenance, which it held did not require consultation

with BLM, and construction or improvement, which does

require consultation, it endorsed the following definition:

“(C]jonstruction” . . . includes the widening of the

road, the horizontal or vertical realignment of the

road, the installation (as distinguished from cleaning,

repair, or replacement in kind) of bridges, culverts

and other drainage structures, as well as any

significant change in the surface composition of the

road (e.g., going from dirt to gravel, from gravel to

chipseal, from chipseal to asphalt, etc.), or any

“improvement,” “betterment,” or any other change in

the nature of the road that may significantly impact

Park lands, resources, or values. “Maintenance”

preserves the existing road, including the physical

upkeep or repair of wear or damage whether from

natural or other causes, maintaining the shape of the

road, grading it, making sure that the shape of the

road permits drainage[, and] keeping drainage

features open and operable—essentially preserving

the status quo.

Id. at 749 (citation omitted). The Tenth Circuit further

explained that, under this standard, grading a road for the first

time would constitute construction and would require advance

consultation. Jd. However, grading or blading a road to

preserve the character of the road in accordance with prior

use would not. Jd. Thus, in some limited and narrow

circumstances, actions involving R.S. 2477 rights-of-way may

be subject to federal influence.

That is not the case here. Instead, this case involves those

circumstances that, according to the Tenth Circuit, are not

subject to federal discretion. Here, the Hales merely seek to

continue using the Road for access to and from their land. The

Hales need nothing more than to pull a trailer with a motorized,

‘tracked vehicle. The Hales do not intend to perform any

construction or make any improvements to the road beyond

routine maintenance. Accordingly, the circumstances in SUWA

are strikingly similar to those of this case and the Hales do not

require the Park Service’s approval for their use of the road

because the Park Service has no control over continued

historical use of a valid, existing R.S. 2477 right-of-way.

SUWA, 425 F.3d at 749.

This Court should grant certiorari to resolve the conflict

among the circuits concerning federal control over state-owned

rights-of-way.

THIS COURT SHOULD GRANT

REVIEW TO RESOLVE WHETHER AN

APPELLATE COURT MAY BASE AN OPINION

ON FACTUAL QUESTIONS NOT HEARD OR

REACHED BY THE TRIAL COURT

In its third and final iteration of the operative decision, the

Ninth Circuit buttressed its opinion with factual conclusions

that had previously never been decided or even heard by any

court. The Ninth Circuit based its holding that NPS did not

violate ANILCA’s promise of “reasonable and feasible access”

_ in part on certain factual determinations that were not part of

the trial court’s holdings. In particular, the Ninth Circuit found

that the “trips contemplated by the Hales threatened to cause

significantly more environmental damage than would be caused

by the more usual post-freeze up runs.””” It also found that “the

Hales principal justification for this [the Hale’s] request—that

it was more dangerous to drive in the winter—makes no sense

to those experienced with conditions in Alaska.””? While the

Hales strongly disagree with these factual! findings, it is more

important to note that they never had an opportunity to litigate

these assertions. Indeed, the Alaska-based trial court noted:

“The Court has yet to visit the site and cannot therefore render

a personal opinion with regard to the reasonableness of various

modes of travel.”™

32 See App. A at A-11 (9th Circuit’s conclusions).

33 Id. at A-11 to A-12.

* App. E at E-3, 97.

' With this petition, the Hales are not asking this Court to

address these factual conclusions, but seek a ruling that the

Ninth Circuit cannot reach such determinations until they are

first litigated in the trial court. They do so because the Ninth

Circuit’s action is in conflict both with decisions of this Court

(regarding an appellate court’s ability to arrive at factual

findings not reached by a trial court) and with the decisions of

other circuits (holding that the question of what is reasonable

access to property is a question of fact, not law).

Federal Rule of Civil Procedure § 52(a) states, “[flindings

of fact, whether based on oral or documentary evidence, shall

not be set aside unless clearly erroneous, and due regard shall

be given to the opportunity of the trial court to judge of the

credibility of the witnesses.” This Court has repeatedly stated

that appellate courts should accept district court findings of fact

that are not clearly erroneous. See, e.g., Cooper Industries, Inc.

v. Leatherman Tool Group, Inc., 532 U.S. 424, 440 n.14 (2001)

(referencing factual review standard in case concerning the

constitutionality of a punitive damages award); Dickinson v.

Zurko, 527 U.S. 150, 153 (1999) (comparing the level of

deference given to district court findings of fact to deference

given to agency findings of fact); First Options of Chicago, Inc.

v. Kaplan, 514 U.S. 938, 948 (1995) (upholding a district

court’s factual finding that parties did not agree to arbitrate

dispute). In this case, of course, there were no findings of fact

because the district court wrongly dismissed the case on

procedural grounds. But just as it is inappropriate for an

appellate court to reject trial court findings of fact that are not

clearly erroneous, it is equally inappropriate for an appellate

court to arrive independently at findings of fact that are not

reached, decided, or even heard by the trial court. With this

petition, this Court has an opportunity to establish the degree to

which an appellate court can sua sponte reach factual

conclusions that are not part of the trial court proceedings.

It should be noted, moreover, that ifthe Ninth Circuit were

deciding the issue of whether the Park Service’s actions gave

the Hales reasonable access as a matter of law, it would be in

conflict with those Circuits that have found that the question of

reasonable access is one of fact.** For example, the First,

Second, and Third Circuits have all found that what constitutes

reasonable access is a question of fact. Law Offices of Curtis V.

Trinko, L.L.P. v. Bell Atlantic Corp., 294 F.3d 307, 326 (2d

Cir. 2002), rev'd in part by Verizon Communications, Inc. v.

Law Offices of Curtis V. Trinko, L.L.P., 540 U.S. 398 (2004);

N.H. Motor Transport Ass'n v. Town of Plaistow, 67 F.3d 326,

331 (1st Cir. 1995); United States v. Certain Land in City of

Newark, County of Essex, State of N.J., 439 F.2d 670, 673 (3d

Cir. 1971).

CONCLUSION

For the reasons contained herein, the Hales respectfully

ask that this Court grant their Petition for Writ of Certiorari.

DATED: May, 2007.

Respectfully submitted,

JAMES S. BURLING

Counsel of Record

Pacific Legal Foundation

3900 Lennane Drive, Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Petitioners

35 These cases are, of course, outside the context of ANILCA.

Nevertheless, the underlying question of what is reasonable access

to property is not a question unique to ANILCA, and traditional

understandings of that question should, as a matter of logic, iaform

similar determinations under ANILCA.

Appendix A-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT HALE; JOSHUA HALE;

NAVA S. SUNSTAR; BUTTERFLY

SUNSTAR,

Plaintiffs-Appellants,

Vv.

GALE NORTON, Secretary of the

Interior, GARY CANDELARIA,

Superintendent, Wrangell-St. Elias

National Park and Preserve; HUNTER

SHARP, Chief Ranger, Wrangell-

St. Elias National Park and Preserve;

DEPARTMENT OF THE INTERIOR;

NATIONAL PARK SERVICE; FRAN

MAINELLA, Director of the National

Park Service, MARCIA BLASZAK,

Acting Regional Director of the

National Park Service; all in their

official capacities,

Defendants-Appellees,

NATIONAL PARK

CONSERVATION ASSOCIATION;

THE WILDERNESS SOCIETY;

ALASKA CENTER FOR THE

ENVIRONMENT,

Defendants-Intervenors-Appellees.

No. 03-36032

D.C.No.

CV-03-00257-A-

RRB

ORDER

WITHDRAWING

OPINION AND

' OPINION

Appendix A—2

Appeal from the United States District Court

for the District of Alaska

Ralph R. Beistline, District Judge, Presiding

Argued and Submitted

July 12, 200S—Anchorage, Alaska

Filed February 5, 2007

Before: Alfred T. Goodwin, Melvin Brunetti, and

William A. Fletcher, Circuit Judges.

Opinion by Judge William A. Fletcher

COUNSEL

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

Foundation, Sacramento, California, for the plaintiffs-

appellants.

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

published 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.

Appendix A-3

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 “clearing”

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 used

a bulldozer to bring in supplies over the MGB road without 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 traverse the

MGB road with a D-4 or D-5 bulldozer towing a sixteen 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.”

Appendix A—4

The NPS promptly responded by letter, requesting more

information about the nature of the emergency and the proposed

bulldozer use. In particular, the letter articulated the NPS’s

concern that the Hales were planning to run the bulldozer over

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

inholders in the Park had “been able to adapt to the winter

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 protected 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

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 environment,

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

approximately nine weeks. It also offered to waive the expense

of conducting the EA. However, the Hales did not provide the

Appendix A-5

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 declaratory

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

dismissed 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’ permit

application, the district court held that it lacked jurisdiction

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

-inacourt.” 5 U.S.C. § 704. The Supreme Court has explained

that

[a]Js a general matter, two conditions must be

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

action must mark the “consummation” of the

Appendix A-6

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 consequences will flow.”

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

omitted). “[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

participate in additional administrative proceedings is different

in kind and legal effect from the burdens attending what

heretofore has been considered to be final agency action.” Nat'l

Ass 'n of Home Builders v. U.S. Army Corps of Eng'rs, 417 F.3d

1272, 1279 (D.C. Cir. 2005) (internal quotation marks and

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

Chicago v. U.S. Army Corps of Eng’rs, 335 F.3d 607, 616 (7th

Cir. 2003).

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

satisfy the principle of finality, the collateral order doctrine may

nevertheless preserve jurisdiction.. Under the collateral order

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

proceedings below is treated as final and immediately

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

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

must conclusively determine the disputed question, resolve an

important issue completely separate from the merits of the

action, and be effectively unreviewable on appeal from a final

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

(1978).

The collateral order doctrine arose as a “practical

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

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

Appendix A-7

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

determine the reviewability of an agency order); Rhode Island

v. EPA, 378 F.3d 19, 23-25 (ist Cir. 2004) (discussing the

circuit 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

regulations 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 doctrine.

Appendix A-8

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

burdens of litigation, conditioned on the resolution

of the essentially legal question whether the conduct

of which the plaintiff complains violated clearly

established 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]Jotwithstanding 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 must wait until after

the analysis is performed to challenge the NPS’s permitting

decision, any question about the applicability of NEPA is likely

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

substantive determination of “adequate and feasible access .. .

subject to reasonable regulations” with reference to the permit

issued (or denied), and the NEPA procedure 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

Appendix A-9

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

effectively unreviewable. Cf Meredith v. Fed. Mine Safety &

Health Review Comm'n, 177 F.3d 1042, 1050-52 (D.C. Cir.

1999) (applying collateral order doctrine to review an

administrative order that rejected defendants’ assertion of

statutory immunity). 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

argument that the NPS lacks the power to regulate travel to an

inholding across federally protected land. In Vogler, an

inholder in the Yukon-Charley Rivers National Preserve in

Alaska sought to drive heavy equipment over a claimed

R.S. 2477 trail without a permit. Jd. 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

historic objects and wildlife therein . . . .” applies

with equal force to regulating an established right of

way within the park ... [T]he regulations here are

necessary to conserve the natural beauty of the

Preserve; therefore, they lie within the government’s

power to regulate national parks.

Appendix A-10

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 (“EJS”) 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 “environmental assessment” (“EA”) to determine

whether an EIS is necessary unless the proposal is one that

“[njormally requires” an EIS, or is one that “[nJormally does

not require” either an EJS or an EA. See 40 C.F.R.

§ 1501.4{a)-(b). Even if an EA is not required, however,

“[a]gencies may prepare an environmental assessment on any

action at any time in order to assist agency planning and

decisionmaking.” 40 C.F.R. § 1501.3(b).

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

decision, will have available, and will carefully consider,

detailed information concerming 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.” Jd. at 350.

Significantly, “{i]f the adverse environmental effects of the

proposed action are adequately identified and evaluated, the

Appendix A-11

agency is not constrained by NEPA from deciding that other

values outweigh the environmental costs.” Jd.

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

Department 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

“adequate and feasible access . . . subject to reasonable

regulations . . . to protect the natural and other values of such

lands.” 16 U .S.C. § 3170(b). NEPA expressly provides that

“to the fullest extent possible . . . the policies, regulations, and

public laws of the United States shall be interpreted and

administered in accordance with the policies set forth in this

[Act].” 42 U.S.C. § 4332. In our view, NEPA helps rather than

hinders 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

ANILCA’s requirement of “adequate and feasible access,”

depending on the nature of the application and the possible time

and 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 environmental

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 abandoned. Moreover,

the Hales’ principal justification for this request—that it was

more dangerous to drive in the winter—makes no sense to those

Appendix A-12

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 provide 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.

Appendix B-1

No. 03-36032

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT

' Robert HALE; Joshua Hale; Nava S. Sunstar; Butterfly Sunstar,

Plaintiffs-Appellants,

Vv.

Gale NORTON, Secretary of the Interior; Gary Candelaria,

Superintendent, Wrangell-St. Elias National Park and Preserve;

Hunter Sharp, Chief Ranger, Wrangell-St. Elias National Park

and Preserve; Department of the Interior; National Park

Service; Fran Mainella, Director of the National Park Service;

Marcia Blaszak, Acting Regional Director of the National Park

Service; all in their official capacities, Defendants-Appellees,

National Parks Conservation Association; The Wilderness

Society; Alaska Center for the Environment,

Defendants-Intervenors-Appellees.

Argued and Submitted July 12, 2005.

Filed Aug. 25, 2006.

Background: Alaska landowners brought action seeking

to compel National Park Service (NPS) to provide feasible

access to their property, which was surrounded by national

park. The United States District Court for the District of

Alaska, Ralph R. Beistline, J., dismissed the case for lack of

subject matter jurisdiction, and landowners appealed.

Appendix B-2

Holdings: The Court of Appeals, William A. Fletcher,

Circuit Judge, held that:

(1) dismissal of complaint challenging the authority of the

Department of the Interior to subject the permit request under

Alaska National Interest Lands Conservation Act (ANILCA) to

a National Environmental Policy Act (NEPA) analysis fell

within the collateral order doctrine, and

(2) incorporation of NEPA into ANILCA’s permit-granting

procedure was consistent with ANILCA.

Affirmed; petition for rehearing and petition for rehearing

en banc denied.

Opinion 437 F.3d 892, withdrawn.

Before ALFRED T. GOODWIN, MELVIN BRUNETTI, and

W. FLETCHER, Circuit Judges.

ORDER

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

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

replaced by the attached opinion.

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

unanimously to deny Appellants’ petition for rehearing. Judge

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

and Judge Goodwin and Brunetti so recommend. The full court

has been advised of the petition for rehearing en banc and no

judge of the court has requested a vote on whether to rehear the

matter en banc. Fed. R. App. P. 35. Appellants’ petition for

rehearing and petition for rehearing en banc, filed March 24,

2006, are DENIED.

Appendix B-3

OPINION

WILLIAM A. FLETCHER, Circuit Judge.

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

purchased 410 acres of land near McCarthy, Alaska. Their

property is completely surrounded by the Wrangell-St. Elias

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

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

to be the thirteen-mile McCarthy-Green Butte Road (the “MGB

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

road as “abandoned.” All of its bridges have washed away, and

the effects of vegetation and erosion have reduced it to little

more than a trail.

The house on the Hales’ property burned down in the

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

a bulldozer to bring in supplies over the MGB road without 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 traverse the

MGB road with a bulldozer and a trailer. 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 proposed

bulldozer use. The letter noted that other inholders in the Park

had used bulldozers for access in the winter months (that is,

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

protected the ground from damage. The Hales responded in

writing, but did not provide all of the requested information.

The NPS then informed the Hales that an environmental

Appendix B-4

assessment (“EA”) would be required before the agency could

grant a permit for bulldozer use. The NPS explained that it did

not regard the situation as falling within the emergency

exception to the requirements of the National Environmental

Policy Act (“NEPA”), as set out in 40 C.F.R. § 1506.11.

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

NPS offered to prepare an EA and. make a decision in

approximately nine weeks. It also offered to waive the expense

of conducting the EA. The Hales did not provide the

information the NPS requested in order to conduct the EA.

Instead, in November 2003, they filed this suit. They sought an

injunction requiring the NPS to provide what they deemed

adequate and feasible access to their property, and a declaratory

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

dismissed 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’ permit

application, the district court held that it lacked jurisdiction

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

because there was no final agency action to review.

I. Jurisdiction

We review de novo dismissals for lack of subject matter

jurisdiction. Kaiser v. Blue Cross of Cal., 347 F.3d 1107, 1111

(9th Cir. 2003).

Appendix B-5

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 satisfied

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

consequences will flow.”

Bennett v. Spear, 520 U.S. 154, 177-78, 117 S. Ct. 1154, 137

L.Ed.2d 281 (1997) (citations omitted). “[{Tjhe 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 participate in additional

administrative proceedings is different in kind and legal! effect

from the burdens attending what heretofore has been considered

to be final agency action.” Nat'l Ass'n of Home Builders v.

U.S. Army Corps of Eng’rs, 417 F.3d 1272, 1279 (D.C. Cir.

2005) (internal quotation marks and citation omitted); see also

Home Builders Ass'n of Greater Chicago v. U.S. Army Corps

of Eng’rs, 335 F.3d 607, 616 (7th Cir. 2003).

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

satisfy the principle of finality, the collateral order doctrine may

nevertheless preserve jurisdiction. Under the collateral order

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

proceedings below are treated as final and immediately

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

541, 546, 69 S. Ct. 1221, 93 L.Ed. 1528 (1949). To come

Appendix B-6

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, 98 S. Ct.

2454, 57 L.Ed.2d 351 (1978).

The collateral order doctrine arose as a “practical

construction” 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,

114 S. Ct. 1992, 128 L.Ed.2d 842 (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, 101 S. Ct. 488, 66 L.Ed.2d 416 (1980) (applying the

doctrine to determine the reviewability of an agency order);

Rhode Island v. EPA, 378 F.3d 19, 23-25 (ist Cir. 2004)

(discussing the circuit consensus that the collateral order

doctrine applies to administrative determinations).

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

. .. Tegulations 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

Appendix B-7

result of the permitting process which, as the district court

found, had not produced a final action at the time of the Hales’

suit. Rather, it challenges the authority of the Department of

the Interior to subject the permit request to a NEPA analysis in

the first place. See 43 C.F.R. §§ 36.6, 36.10(d).

Given ANILCA’s unique statutory scheme, the Hales’

challenge is analogous to an appeal from the rejection of a

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

order that squarely falls within the collateral order doctrine.

See, e.g., Behrens v. Pelletier, 516 U.S. 299, 305, 116 S. Ct.

834, 133 L.Ed.2d 773 (1996). Qualified immunity provides

an entitlement not to stand trial or face the other

burdens of litigation, conditioned on the resolution of

the essentially legal question whether the conduct of

which the plaintiff complains violated clearly

established 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, 105 S. Ct. 2806, 86

L.Ed.2d 411 (1985). The Hales claim that because ANILCA

guarantees access “[n]Jotwithstanding any . . . other law,” they

are entitled to immunity from the burdens of NEPA analysis.

Like qualified immunity, the Hales’ claim turns on an

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

if the NPS conducts the NEPA analysis. If the Hales must wait

to challenge the NPS’s actual permitting decision, the relevance

of NEPA is likely to fall away. The district court will review

the NPS’s substantive determination of “adequate and feasible

access .. . subject to reasonable regulations” with reference to

the permit issued, and the procedure that the NPS followed in

reaching its permitting decision will likely not be relevant to

that determination.

Appendix B-8

We hold that the Hales here challenge an administrative

decision that, like an order that denies a qualified immunity

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

“unreviewability” prongs of the collateral order doctrine. First,

the regulations incorporating NEPA into the permitting process

are clearly conclusive and not tentative. Second, the

determination of whether the Department of the Interior can

incorporate NEPA into the permitting process is a pure and

independent question of law, separate from whether the access

ultimately afforded is “adequate and feasible.” Third, if the

Hales must wait for the NPS’s ultimate permitting decision, the

Department of the Interior’s decision to apply NEPA will likely

become effectively unreviewable. Cf, Meredith v. Fed. Mine

Safety & Health Review Comm'n, 177 F.3d 1042, 1050-52

(D.C. Cir. 1999) (applying collateral order doctrine to review an

administrative order that rejected defendants’ assertion of

statutory immunity).

Il. Discussion

We agree with the district court that the Hales’ ability to

use the MGB road within the Park is subject to reasonable

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

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

the power to regulate travel to an inholding across federally

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

Rivers National Preserve in Alaska sought to drive heavy

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

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

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

Appendix B-9

equal force to regulating an established right of way

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

necessary 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.

ANILCA provides limited access rights for inholders in the

absence of a right-of-way, 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, but these rights are “subject to

reasonable regulations issued by the Secretary to protect the

natural and other values of such lands.” 16 U.S.C. § 3170(b).

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

“environmental assessment” (“EA”) to determine whether an

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

requires” an EIS or that “[nJormally does not require” either an

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

not .equired, 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).

NEPA ensures that an agency, “in reaching its decision,

will have available, and will carefully consider, detailed

information concerning significant environmental impacts,” and

will make such information available to the public. Robertson

v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.

Ct. 1835, 104 L.Ed.2d 351 (1989). “NEPA itself does not

Appendix B-10

mandate particular results, but simply prescribes the necessary

process.” Jd. at 350, 109 S. Ct. 1835. Significantly, “[i}f the

adverse environmental effects of the proposed action are

adequately identified and evaluated, the agency is not

constrained by NEPA from deciding that other values outweigh

the environmental costs.” Jd.

This case differs from Vogler only in that the Department

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

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

between NEPA’s information-gathering and analysis

requirements and ANILCA’s requirement of “adequate and

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

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

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

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

United States shall be interpreted and administered in

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

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

Department of the Interior in fulfilling its statutory duty under

ANILCA to balance “adequate and feasible access” with the

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

the incorporation of NEPA into the permit-granting procedure

is consistent with ANILCA.

Conclusion

We hold that the district court had jurisdiction to consider

the Hales’ challenge to the incorporation of NEPA into

ANILCA’s permitting process, and that conducting a NEPA

analysis is consistent with the “adequate and feasible access”

right of ANILCA.

AFFIRMED.

Appendix C-1

No. 03-36032

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

Robert HALE; Joshua Hale; Nava S. Sunstar; Butterfly Sunstar,

Plaintiffs-Appellants,

Gale NORTON, Secretary of the Interior; Gary Candelaria,

Superintendent, Wrangell-St. Elias National Park and Preserve;

Hunter Sharp, Chief Ranger, Wrangell-St. Elias National Park

and Preserve; Department of the Interior; National Park

Service; Fran Mainella, Director of the National Park Service;

Marcia Blaszak, Acting Regional Director of the National Park

Service; all in their official capacities, Defendants-Appellees,

National Parks Conservation Association; The Wilderness

Society; Alaska Center for the Environment,

Defendants-Intervenors-Appellees.

_ Argued and Submitted July 12, 2005.

Filed Feb. 9, 2006.

Background: Landowners brought action seeking to

compel National Park Service (NPS) to provide feasible access

to their property, which was surrounded by national park. The

United States District Court for the District of Alaska, Ralph R.

Beistline, J., dismissed the case for lack of subject matter

jurisdiction, ‘and landowners appealed. .

Appendix C-2

Holdings: The Court of Appeals, William A. Fletcher,

Circuit Judge, held that:

(1) landowners’ use of the road within park was subject to

reasonable regulation by the NPS, and

(2) district court did not have jurisdiction under the

Administrative Procedure Act (APA) to reach merits of

landowners’ action.

Affirmed.

Before GOODWIN, BRUNETTI, and W. FLETCHER,

Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge.

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

purchased 410 acres of land near McCarthy, Alaska. Their

property is completely surrounded by the Wrangell-St. Elias

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

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

to be the thirteen-mile McCarthy-Green Butte Road (the “MGB

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

road as “abandoned.” All of its bridges have washed away, and

the effects of vegetation and erosion have reduced it to little

more than a trail.

The house on the Hales’ property burned down in the

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

a bulldozer to bring in supplies over the MGB road without 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 traverse the

MGB road with a bulldozer and a trailer. The superintendent

promptly responded, offering to assist the Hales in preparing

Appendix C-3

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 responded by letter, requesting more information

about the nature of the emergency and the proposed bulldozer

use. The letter noted that other inholders in the Park had used

bulldozers for access in the winter months when the frozen

ground and snow cover protected the ground from damage. The

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

requested information. The NPS then informed the Hales that

an environmental assessment (“EA”) would be required before

the agency could grant a permit for bulldozer use. The NPS

explained that it did not regard the situation as falling within the

emergency exception to the requirements of the National

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

§ 1506.11.

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

NPS offered to prepare an EA and make a decision in

approximately nine weeks. It also offered to waive the expense

of conducting the EA. The Hales did not provide the

information the NPS requested in order to conduct the EA.

Instead, in November 2003, they filed this suit. They sought an

injunction requiring the NPS to provide what they deemed

adequate and feasible access to their property, and a declaratory

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 temporary 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.

Appendix C-4

The district court denied the motion for the TRO and

dismissed 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’ permit

application, the district court held that it lacked jurisdiction

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

because there was no final agency action to review.

I. Standard of Review

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).

Il. Jurisdiction

We agree with the district court that the Hales’ ability to

use the MGB road within the Park is subject to reasonable

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

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

the power to regulate travel to an inholding across federally

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

Rivers National Preserve in Alaska sought to drive heavy

equipment over a claimed R.S. 2477 trail without a permit. /d.

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

historic objects and wildlife therein . . .” applies with

equal force to regulating an established right of way

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

Appendix C-5

necessary 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.

The Alaska National Interest Lands Conservation Act

(“ANILCA”) provides limited access rights for inholders in the

absence of a right-of-way, 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, but these rights are “subject to

reasonable regulations issued by the Secretary to protect the

natural and other values of such lands.” 16 U.S.C. § 3170(b).

We also agree with the district court that it was without

jurisdiction to reach the merits of the Hales’ suit. 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. Because the permitting process had not

resulted in a final action at the time of the Hales’ suit, the

district court properly dismissed the suit for want of

jurisdiction. Any judicial challenge may be brought only after

final agency action.

AFFIRMED.

Appendix D-1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

ROBERT HALE, JOSHUA | FILED

HALE, NAVA S&S. NOV 18 2003

SUNSTAR, and UNITED STATES

BUTTERFLY SUNSTAR, | DISTRICT COURT

DISTRICT OF ALASKA

Plaintiffs,

Case No. A03-0257 CV

vs. (RRB)

GALE NORTON, Secretary | ORDER DENYING

of the Interior, GARY PLAINTIFFS’ MOTION

CANDELARIA, FOR TEMPORARY

Superintendent, Wrangell-St. | RESTRAINING ORDER

Elias National Park and AND DISMISSING

Preserve; HUNTER | PLAINTIFFS’

‘| SHARP, Chief Ranger, . | REQUEST FOR

Wrangell-St. Elias National | PERMANENT RELIEF

Park and Preserve; AND INJUNCTION

DEPARTMENT OF THE

INTERIOR; NATIONAL

PARK SERVICE; FRAN

MAINELLA, Director of the

National Park Service;

MARCIA BLASZAK,

Acting Regional Director of

the National Park Service, all

in their official capacities,

Defendants.

Appendix D-2

I. INTRODUCTION

Before the Court are Plaintiffs Robert Hale, Joshua Hale,

Nava S. Sunstar, and Butterfly Sunstar (hereinafter collectively

referred to as “Plaintiffs”) with (1) an Ex Parte Application for

Temporary Restraining Order and Order to Show Cause re

Preliminary Injunction (Docket No. 2) and (2) a Complaint for

Declaratory Injunctive Relief (Docket No. 1). The Court has

reviewed the extensive pleadings filed by the parties and has

considered the arguments of counsel presented at the hearing in

this matter on November 17, 2003.

Il. FACTS

Plaintiffs are the owners and/or leaseholders of certain

property located near the town of McCarthy, Alaska. Plaintiffs’

property is surrounded by the Wrangell-St. Elias National Park

and Preserve (hereinafter the “Park’’). Plaintiffs’ property was

privately owned for many years prior to the creation of the Park

in 1980. Plaintiffs’ property was at one time connected to the

. Alaska road system by the McCarthy-Green Butte Road, which

provided valid and legal access rights to the property in

question for many years. However, whether valid and legal

access existed at the time that the Park was created is in dispute.

The McCarthy-Green Butte Road is a roughly thirteen (13)

mile long trail that leads from Plaintiffs’ property to the town

of McCarthy and passes through the Park. This road, however,

has not been used for vehicular travel for many years and has’ -

fallen into disrepair. For example, the bridges crossing

McCarthy Creek are now gone and vegetation covers much of

the roadway. The only vehicles that could possibly traverse the

road today are four-wheel drive vehicles, tracked vehicles,

and/or snow machines. The Alaska Road Commission listed

_ the road as “abandoned” in 1938. There is little evidence that

Appendix D-3

anyone has sought to maintain the road or has successfully

driven a motor vehicle on it since.

Plaintiffs obtained the property in question in the Spring of

2002 and have, on occasion, utilized the McCarthy-Green Butte

Road, in one fashion or another, to access their property from

the town of McCarthy. Until recently, the primary method used

by Plaintiffs on the trail has been horseback, although a tracked

vehicle was apparently utilized as well.

In the Spring of 2003, Plaintiffs’ house burned to the

ground and Plaintiffs began efforts to rebuild. In order to bring

new supplies in via the McCarthy-Green Butte Road, they

began using a tracked vehicle, a D-4 Caterpillar. Shortly

thereafter, Plaintiffs were advised by representatives of the Park

Service that they could not use the aforementioned tracked

vehicle on the McCarthy-Green Butte Road. On April 8, 2003,

a Public Notice was posted near the roadway prohibiting the use

of any motorized vehicles on the road other than snow

machines. In August of 2003, Plaintiffs sought Park Service

permission to utilize a motorized tracked vehicle in order to

bring supplies into their property. The Park Service refused to

give Plaintiffs permission for this, on either a temporary or

permanent basis, although it attempted to work with Plaintiffs

and expedite the permitting process at no cost.

It is the Park Service’s position that an environmental

assessment and route study must be conducted before it can act

upon Plaintiffs’ request to utilize motorized tracked vehicles on

the McCarthy-Greene Butte Road. Plaintiffs contend that they

are not required to obtain a permit or Park Service permission

before upgrading and utilizing the route in question.

The Park Service has also notified Plaintiffs that they

cannot utilize a tunnel that is on Park land, which tunnel leads

. Appendix D-4

to an underground mine owned by Plaintiffs. Although this is

a separate issue, it is addressed below as well.

Ill. DISCUSSION

Several issues are raised in this matter. The first issue is

whether Defendants can regulate right of access over federal

conservation lands when the right of access existed before the

creation of the conservation unit. Included within this issue is

the question of whether or not a right of access, which was at

one time valid, can be abandoned and, if so, whether it was

abandoned in this instance. More specifically, the ultimate

question is whether or not Plaintiffs must obtain a license

and/or a permit to utilize a motorized tracked vehicle on the

McCarthy-Green Butte Road in order to access their property

which is located within the Park. Although this has been

described by some as a “landmark” dispute, it is not. As set

forth below, the matter has been previously litigated and

resolved in this Circuit.

The second issue is whether Defendants can prohibit

Plaintiffs from entering a mine tunnel on Park land which leads

underground to Plaintiffs’ mine but has been closed by the Park

Service for safety reasons.

This dispute would have never likely arisen prior to 1980

and the enactment of the Alaska National Interest Lands

Conservation Act (ANILCA). Prior to this time, the land in

question was subject to few restrictions and was utilized freely

for mining, subsistence, and recreational purposes. ANILCA

changed this, and for reasons clearly articulated by Congress, a

large portion of land within Alaska was placed into

conservation units, i.e., national forests, parks, wildlife refuges,

and wild and scenic rivers. From the outset, concern existed

regarding how this dramatic change in land classification would

impact those with vested rights in and/or around the

Appendix D-5

-conservation units and those who customarily used the land in

question. The challenge for Congress was to balance the

interests of private property owners, as well as subsistence and

recreational users, against the need to safeguard and regulate

federal land and wildlife. With this in mind, considerable

discussion, debate, and compromise preceded the enactment of

ANILCA. The hope was to once and for all resolve the

conflicts that this proposed legislation created and to preserve

forever much of Alaska’s pristine wilderness, while not

significantly compromising the lifestyle of those who resided

there, who pioneered the land, and who contributed to its

unique and colorful character. The legislation that ensued lies

at the center of the current dispute.

A. Valid Rights of Access That Existed

Prior to ANILCA Were Not

Significantly Restricted By ANILCA.

Interestingly, one of the issues which is debated here was

not the subject of any debate preceding the adoption of

ANILCA by Congress. The Congressional Record suggests that

legislators presumed existing rights of access, or right-of-ways,

would not be impacted by ANILCA and only discussed the

issue in passing. Their views were explicitly set forth in the

resulting legislation, i.e., 16 U.S.C. §§ 3101 to 3233.

More specifically, 16 U.S.C. § 3129 provides: “Valid

existing right of access[.] Nothing in this subchapter shall be

construed to adversely affect any valid existing right of access.”

This provision was adopted both by the House of

Representatives (H.R. Rep. No. 96-97, pt. 2, at 66 & 206

(1979)) and the United States Senate (S. Rep. No. 96-413, at 67

& 300 (1979)) and remained intact after numerous committee

conferences. The provision itself is clear and unambiguous and

stands alone in its expression of Congressional intent.

Appendix D-6

The Court notes that Congress engaged in considerable

debate concerning access rights by in-holders who did not have

a valid existing right of access to their property when ANILCA

was adopted. This was codified in 16 U.S.C. § 3170 and was

the subject of extensive discussion. Of note, during these

discussions, and on August 1, 1978, Alaska Senator Ted

Stevens specifically addressed the issue here raised concerning

existing access rights.

Senator Stevens: Mr. Chairman, again the problem is

understanding it. If you will permit me — in some of

these areas, as I mentioned, there are existing

accesses, existing roads that have been used, existing

airports.

They are going now to be placed into parks and

perhaps wilderness areas. This says the Secretary can

grant temporary access when he determines such

access will not result in permanent harm to the

resources of such units.

Now, I wonder about that in terms of again the

existing level of access and what is going to happen to

that. Are we going to be able to use those roads?

Does this mean, Mr. Quarles, that permanent harm to

the resources — does that mean that the existing uses

would be foreclosed for such purposes?

Appendix D-7

Mr. Quarles: No. I don’t read it that way at all, sir.'

Later that day Senator Stevens sought to again clarify the -

issue when addressing Senator Jackson, the Chairman of the

United States Senate Committee on Energy and Natural

Resources, while discussing the issue of temporary access

across federal lands.

Senator Stevens: I want to make sure you are not

foreclosing the existing permanent access.

The Chairman: We are enlarging it. The key situation

here, the word is temporary. It is for surveys,

geographical, exploratory or other temporary uses. It

deals only with those special situations, as I

understand it.”

Finally, in order to make it absolutely clear that ANILCA

would not eradicate and/or seriously compromise existing right-

of-ways, Senator Stevens, on the floor of the United States

Senate on August 18, 1980, engaged in the following brief

colloquy with Senator Jackson:

Mr. Stevens: I would like to clarify a point regarding

valid existing rights. The designation of conservation

system units are subject to valid existing rights and

use of such rights subject to reasonable regulation,

shall be permitted. It is my understanding that valid

Seuaaniaaen | 95th om 75-16 Ramet 1, 1978) recente of

Senator Stevens, Member, Senate Comm. Energy and Natural

Resources; and, Mr. Quarles).

2 Id, at 78.

Appendix D-8

existing rights do include any valid existing rights of

way or rights of way which are created in the future.

Mr, Jackson: The Senator is correct. The designation

of units of this bill are subject to valid existing rights

and the use thereof, subject to reasonable regulation.’

The Court was unable to locate any part of the

Congressional Record, following an extensive search of the

committee hearing notes, the numerous commentaries

contained in the compilation of legislative history, and the

debate on the floors of both the House of Representatives and

the Senate, that indicated congressional intent different from

that expressed by Mr. Quarles and/or Senator Jackson to

Senator Stevens, and set forth specifically in 16 U.S.C. § 3169.

Consequently, the Court concludes ANILCA was not to

prohibit any valid right of access that existed at the time it was

enacted, although such rights of access were subject to

reasonable regulation.

B. Even If A Valid Access Right Exists,

It Is Subject To Reasonable Regulation.

Controlling case law,‘ which is binding upon this Court, as

well as Senator Stevens’ comments on the Senate floor,’

suggest that, despite valid existing rights of access, the

* 126 Cong. Rec. S11, 195-96 (daily ed. Aug. 19, 1990) (statements

of Senators Stevens and Jackson).

* See US. v. Vogler, 859 F.2d 638, 642 (9th Cir. 1988), wherein the

Ninth Circuit determined, “[t]he Secretary’s power to regulate within

a national park to ‘conserve the scenery and nature and historic

objects and wildlife there ...’ applies with equal force to regulating

an established right of way within the park.”

> Supra note 3.

Appendix D-9

Secretary of the Interior (hereinafter the “Secretary”) has the

authority to reasonably regulate access routes that pass through

Park property. This is largely because the land underlying and

surrounding the access routes is Park land, and because one of

the overriding purposes of ANILCA was to preserve and protect

Park land.® However, what constitutes “reasonable regulation,”

in light of the clear mandate to protect valid existing rights of

access, remains the subject of dispute.

“Reasonable regulation” might include, among other

things, the prohibition of uses that would damage land outside

the right-of-way, or it might prohibit uses that would alter or

upgrade the roadway from the way it existed in December of

1980 when the Park was created. “Reasonable regulation” may

even require an environmental assessment when the access

route in question is being reactivated after years of non-use and

natural deterioration. And “reasonable regulation” can include

@ permitting process to enforce reasonable regulations so long

as the permitting process is itself reasonable, not unnecessarily

restrictive, and consistent with the Congressional mandate

favoring access. Therefore, even if a valid right of access

existed at the time Plaintiffs acquired the property in question,

the Court concludes the Park Service may require Plaintiffs to

seek a permit prior to re-opening a roadway that has long since

been inactive.’

iMoreover, even though the declarations submitted by

Pisintiffs’ expert, Raymond A. Kreig (Docket No. 26), are

impressive and should be considered by the Park Service in

evaluating Plaintiffs’ access request, they do not dispose of the

issue. If it were clear that, in addition to Mr. Kreig’s findings,

6 16US.C. § 310).

7 Vogler, 859 F.2d at 642.

Appendix D-10

the access route in question existed at the time ANILCA was

enacted, had not been subsequently abandoned, followed the

same route as it historically did, is in roughly the same

condition as it was at the time of ANILCA, and is sought to be

used in the same manner as it was capable of being used in

1980, Plaintiffs’ arguments may have merit and any permitting

process would likely only need to be perfunctory. However, to

utilize this route today, Plaintiffs must cross streams that were

originally spanned by bridges, must apparently travel outside

the right-of-way in certain places, and must, in some instances,

create new sections of roadway. They must essentially open up

a road that has been overgrown and abandoned for more than 65

years. This type of activity would naturally be of concern to the

Park Service and would justify a reasonable investigation

and/or a permitting process whether access rights existed or not.

Therefore, the Park Service was justified in asking the questions

it did and in seeking input concerning Plaintiffs’ activities on

the roadway. Consequently, the Court concludes the Park

Service is entitled, within the scope of 16 U.S.C. § 3169, to

require Plaintiffs to obtain a permit before utilizing the roadway

in dispute.

C. If Plaintiffs Lack Valid Rights

Of Access Pursuant To 16 U.S.C. § 3169,

They Are Still Entitled To Access To

In-holdings Subject To Reasonable Regulation.

' There is no question that Plaintiffs are “in-holders” in the

sense that they own property that is surrounded by Park land.

‘Therefore, without a valid right of access under 16 U.S.C.

§ 3169, they are limited to the protections of 16 U.S.C. § 3170,

which permits the use of snow machines, motorboats, airplanes,

and non-motorized surface transportation. These rights may not

Appendix D-11

be restricted without first providing notice and a “hearing in the

vicinity of the affected unit of area.”

As “in-holders,” Plaintiffs are also entitled to such rights

as are “necessary to assure adequate and feasible access” to

their property.’ These additional rights are again “subject to

reasonable regulations issued by the Secretary to protect the

natural and other values of such lands.”"° Herein lies much of

the present dispute.

Plaintiffs believe that “adequate and feasible access” to

their property should permit them to utilize the old McCarthy-

Green Butte Road, to deviate therefrom when necessary, to

utilize a tracked vehicle to do so, to ford streams where bridges

used to be, and to do so without permission or permit.

Defendants appear to question Plaintiffs’ entitlement to these

rights, but have not foreclosed anything at this time.

Defendants contend that, in any event, a permit is required,

thereby necessitating a study of the impact of Plaintiffs’

proposed uses.

Once again, it is clear that if the secretary has the authority

to regulate the manner and means of access, as is provided

hereby statue [sic], then the Secretary, via the Park Service, has

the authority to require permits before allowing use of an access

route. Therefore, the Court concludes Plaintiffs must obtain a

permit whether proceeding under 16 U.S.C. § 3169 or 16

U.S.C. § 3170.

* 16 U.S.C. § 3170(a).

_ * 16 U.S.C. § 3170(b).

0 id,

Appendix D-12

This does not necessarily mean that Plaintiffs will be

prevented from accessing their properiy as they seek to do. It

simply means that the Park Service is entitled to first evaluate

their request and consider the impact it will have on the Park.

The Park Service will then, after considering all relevant

factors, issue a document outlining the means and manner of

access it permits. If Plaintiffs are dissatisfied with the Park

Service’s decision, they can appeal it to this Court.

D. The Court Lacks Jurisdiction To

Address Issues Relating To The

Permits, Under The Administrative

Procedure Act, Until After The

Permit Process Has Been Completed.

The jurisdiction of the U.S. District Court is limited and

specific.’ Without jurisdiction the Court cannot act.’? In the

present casé, it is clear that Plaintiffs must seek a permit to use

the roadway in question, regardless of the nature of their access

rights. Consequently, the Park Service is entitled to investigate

the matter and make a reasoned determination. Once a final

decision is made, Plaintiffs may appeal the same, should they

choose to do so. However, before this process is completed, the

Court lacks jurisdiction over the Plaintiffs’ claims.”

‘1 See Insurance Corp. of Ireland v. Compagnie des Bauxites, 456

U.S. 694, 701 (1982).

614, 625 (Oth Cir. 1991) abrogated on other grounds by 523 U.S. 83

(1998).

'3 The Administrative Procedure Act provides in relevant part:

“Agency action made reviewable by statute and final agency action

for which there is no other adequate remedy in a court are subject to

(continued...)

Appendix D-13

E. The Motion For Temporary Restraining

Order Is Denied As Plaintiffs Have

Failed te demonstrate A Probability

Of Success On The Merits And/Or

Irreparable Injury.

Given the lack of jurisdiction, the current posture of the

case, the successful efforts Plaintiffs have made to supply

themselves for the winter, and the fact that this matter was

brought to the Court’s attention at such a laie date, the Court

hereby DENIES Plaintiffs’ Request for Temporary Restraining

Order (Docket No. 2). This dispute must be adjudicated

pursuant to the Administrative Procedures Act (APA) and

brought before the U.S. District Court once a final decision has

been entered."

As the Court previously indicated, vehicular travel over the

roadway in question has not occurred for more than 65 years.

This was not a secret at the time Plaintiffs purchased the

property, as many living within the Park boundaries lack

vehicular access to their property. Therefore, it is reasonable to

_ allow the Park Service time to investigate the issue before

making a decision. Plaintiffs’ lifestyle will not be significantly

impacted by any delay involved, as there is no reason for them

to have expected that access existed when they purchased the

property in question.

By the same token, the tunnel which Plaintiffs wish to

enter, Polk Adit 1601, has been unused for many years and

'3 (...continued)

judicial review.” 5 U.S.C. § 704 (emphasis added). Consequently,

because the Park Service has yet to make a “final agency action,” the

court determines it lacks jurisdiction over Plaintiff's claims.

Appendix D-14

there is no urgency at the present time that would justify a

temporary restraining order. This tunnel is the property of the

Park Service and is located entirely on Park land. Moreover,

the safety issues the Park Service raises do not appear to be

unreasonable upon their face. Plaintiffs can, nevertheless, seek

an appropriate permit to utilize the tunnel in question and can

appeal any final decision entered. .

IV. CONCLUSION

_ The Court greatly appreciates the desire of Alaskans to

access the lands that surround them and can personally recall

the turmoil and agony of the ‘60s and ‘70s, as these sensitive

issues were debated both locally and throughout the Nation.

The Court also understands the wilderness lifestyle and the need

to reasonably balance environmental concerns with human

needs. However, more than anything else, the Court appreciates

the rule-of-law. The Court has no ortion but to follow the law

as enacted by Congress and established in this Circuit. For the

Court to grant Plaintiffs’ request, it would have to ignore US.

vy. Vogler, 859 F.2d 638 (9th Cir. 1988), which case is directly

on point and controlling in this matter. More specifically, both

the Vogler decision and ANILCA authorize the Park Service to

require a permit for motorized travel on Park land and subject

the traveler to reasonable regulation.'* Furthermore, the APA

precludes the Court from acting until after the Park Service has

ruled upon Plaintiffs’ permit application, according to its

established procedures. '®

Finally, the facts of this case do not justify the issuance of

a temporary restraining order, as it is not clear that Plaintiffs

will ultimately prevail in this matter, although the Court notes

'S Vogler, 859 F.2d at 642.

Appendix D-15

that they may well be granted some form of motorized access

to their property. Plaintiffs have long since been aware of the

Park Services’s position with regard to access. Consequently,

the Court determines Plaintiffs wil not be irreparably harmed

by adhering to Park Service rules until the matter is finally

resolved.

The Court expects that, henceforth, as the parties

continue to address these issues through the permitting

process, they will each respect the other and will

communicate openly and candidly. The showmanship and

emotionalism that have characterized their interactions in

the past must cease. After all, they are neighbors. The

ultimate resolution of this case will be based solely on a fair

application of applicable law.

Therefore, for the reasons stated herein, Plaintiffs’ Ex Parte

Application for Temporary Restraining Order and Order to

Show Cause re Preliminary Injunction (Docket No. 2) is hereby

DENIED, and Plaintiffs’ Complaint for Declaratory and

Injunctive Relief (Docket No. 1) is hereby DISMISSED for

lack of jurisdiction.

ENTERED at Anchorage, Alaska, this 18th day of

November, 2003.

s/ Ralph R. Beistli

RALPH R. BEISTLINE

UNITED STATES DISTRICT JUDGE

Appendix E-1

__IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

ROBERT HALE, JOSHUA

HALE, NAVA S. SUNSTAR,

AND BUTTERFLY SUNSTAR,

Plaintiffs,

vs.

Case No. A03 0257 CV

GALE NORTON, Secretary of (RRB)

the Interior, GARY

CANDELARIA, Superintendent, )

Wrangell-St. Elias National Park )

and Preserve; HUNTER SHARP, )

Chief Ranger, Wrangell-St. Elias )

National Park and Preserve; )

DEPARTMENT OF THE )

INTERIOR; NATIONAL PARK )

SERVICE; FRAN MAINELLA, )

Director of the National Park )

Service; MARCIA BLASZAK, _)

Acting Regional Director of the ) ORDER DENYING

National Park Service, all in their ) PLAINTIFFS’

)

official capacities, ) MOTION RE

) RECONSIDERATION

Defendants. )

)

Before the Court is Plaintiffs’ Motion for Reconsideration

(Docket 29). Plaintiffs have supplied the Court with additional

evidence, including photographs and declarations, and have

taken issue with the Court’s findings and conclusions entered

in its Order of November 18, 2003. The Court, nevertheless,

Appendix E-2

after review of all the pleadings filed to date, reaffirms its

previous decision in this matter.

It is important that the parties not read more into the

Court’s Order than is there. Both seem to have done so. The

Court recognizes the access rights provided by ANILCA and

believes that they must be acknowledged and respected, subject

to reasonable regulation. Congressional intent and subsequent

case law make it clear, however, that the regulator is the Park

Service and not the in-holders. If the Park Service abuses its

discretion with regard to the permitting process, Plaintiffs may

seek redress in the courts.

The Court will clarify and briefly summarize its findings

and conclusions in this matter.

1. The Plaintiffs, by virtue of their ownership of property

surrounded by the Wrangell-St. Elias National Park (the

“Park”). have certain rights of access to their property which

were guaranteed by ANILCA when the Park was created.

2. Plaintiffs’ access rights, whether under 16 U.S.C.

§ 3169 or 16 U.S.C. § 3170, are subject to reasonable regulation

by the Park Service.

3. Reasonable regulation includes the right to establish a

permitting process for motorized land travel within the Park.

US. v. Vogler, 859 F.2d 638 (9th Cir. 1988). The Court is well

aware of both the distinctions and similarities between the

Vogler case and this one. Vogler, however, stands for the

proposition that reascraie regulation includes the right of the

Park Service, in its discretion, to require persons desiring to use

motorized land vehicles (other than snow enema within the

Park to first obtain a permit.

4. The access route that Plaintiffs now seek to re-open and

utilize did, at one time, provide vehicular access to Plaintiff's

property. This route, however, has fallen into disrepair and has

not been used is its customary fashion for decades. Whether the

Appendix E-3

last truck traveled it 30 years ago or 65 years ago is of little

significance, for the roadway itselfhas degenerated significantly

since ANILCA was enacted and is now better characterized as

a trail. Plaintiffs admit that the most practical means of

utilizing the route currently is by bulldozer, although four-

wheel drive and/or all-terrain vehicles would likely be able to

traverse the trail during certain times of the year.

5. Clearly within the Park Service’s regulatory function

is the requirement for reasonableness. This includes the

obligation to expeditiously address and fairly resolve permit

applications, and to recognize that, at least as it applies to this

_ portion of the Park, people are part of the environment. To

date, it appears that the Park Service has been reasonable in its

efforts to deal with Plaintiffs and in its desire to fairly regulate

the manner and means of motorized access Plaintiffs seek. The

Court would be quick to say so if it felt otherwise. The

challenge has been Plaintiffs’ lack of cooperation.

6. Whether the Park Service is required to follow the

National Environmental Policy Act (NEPA) has not been fully

briefed by the parties or addressed by the Court. However, if

the Park Service, in good faith, believes that a NEPA study is

needed and can be performed in a reasonably expeditious

fashion, such a study may well be appropriate regardless of

whether it is mandated by law.

7. On the other hand, there is evidence in the record to

suggest that much, if not all, of the access route in question is

on stable ground and can be used, with reasonable regulation,

without significantly injuring the surrounding terrain. The

Court has yet to visit the site and cannot therefore render a

personal opinion with regard to the reasonableness of various

modes of travel. There may be a number of options that would

provide Plaintiffs with reasonable and adequate motorized

access to their property without significantly compromising

Park Service interests. The issue here is—who is in charge?

Appendix E-4

Plaintiffs believe that it is for them to determine what is

appropriate access, unfettered by the Park Service. The law,

however, requires the Park Service to réasonably regulate

access routes within the Park.

8. Property owners seeking access rights within the Park

have an implicit obligation to be reasonable as well. Plaintiffs’

confrontational attitude, their refusal to read Park Service letters

and/or their return of Park Service letters unopened, Plaintiffs’

refusal to speak with Park Service representatives who

attempted to communicate with them in person, and Plaintiffs’

occasional efforts to intimidate Park Service employees, were

not reasonable and have served only to delay resolution of this

matter and make the Park Service’s task more difficult.

Plaintiffs’ expectation that they alone can regulate their

activities within the Park is unreasonable. Plaintiffs’ efforts to

forego Park Service regulation by directly bringing this matter

to the Court prematurely is unreasonable as well.

9. It is highly unlikely that Plaintiffs will prevail on their

claim to use a tracked vehicle on the McCarthy Green Butte

Road without first obtaining Park Service approval. Given the

clear precedent of Vogler, the subject is not “fair ground for

litigation.”

10. The “hardships” experienced by Plaintiffs as a result of

the delay associated with obtaining a permit, when viewed in

the context of “bush living” in Alaska, are not so substantial or

unexpected that an exception to the permitting process or the

entry of an injunction is justified. Many Alaskans who choose

a wilderness lifestyle routinely experience similar hardships,

without the benefit of a large scale air lift of goods. This is

verified not only by affidavits submitted on behalf of

Defendants, but is common knowledge in the State. In this

case, the fire that created the hardship occurred in April but the

lawsuit was not filed until November 3, 2003. Plaintiffs cannot

avoid the permitting process by failing to timely act.

Appendix E-5

Furthermore, the Plaintiffs have been able to freely travel to and

from their property within the Park and have chosen to spend

the winter there. Additionally, there is evidence in the record

that a substantial amount of goods was delivered to the property

by air prior to winter.'

11. The Court cannot be any clearer regarding its

interpretation of the law. Plaintiffs must follow established

Park Service rules and seek a permit to utilize the access route

in question. The Park Service must be given reasonable time to

evaluate and rule upon the permit application. Once a final

ruling has been entered, the matter becomes ripe for Court

review pursuant to 5 U.S.C. § 702 et seg. Until that time, the

Court lacks jurisdiction to proceed or interfere with the

administrative process. Plaintiffs’ request for an emergency

permit made on August 30, 2003, does not satisfy this

requirement, for no final order has been entered by the Park

Service with regard to Plaintiffs’ request to use a tracked

vehicle on the McCarthy-Green Butte Road.

In its prior Order (Docket 27), the Court suggested that the

best way to resolve this dispute was for the parties to

communicate in good faith and respect one another’s needs and

concerns. This continues to be the case. If it is Plaintiffs’

desire to continue the battle, the appellate process is very much

available to them. If, on the other hand, they wish to obtain

some form of motorized access to their property in the

reasonably near future, there is a permit process that they can

pursue.

' The Court has not relied on newspaper accounts for any of its

findings in this matter.

Appendix E-6

ENTERED at Anchorage, Alaska, this 15 day of

December, 2003.

s/ Ralph R. Beistl

RALPH R. BEISTLINE |

UNITED STATES DISTRICT JUDGE

Appendix F-1

. Form 10-114

Rev. Dec. 00

UNITED STATES DEPARTMENT OF THE INTERIOR

National Park Service

Special Use Permit

Name of Use Temporary Access Permit Reviewed 3/12/2004

Permit Expires 4/15/2005

Long Term __ Permit # -ARO—WRST-9500-HO23

Region—park-—T ype [sic]—No.#

Short Term x Wrangell-St. Elias National Park and Preserve

Name of Area

Is hereby authorized from the date of signature through

April 15, 2004 and from October20, 2004 through 1 year

from the date of the signature or April 15, 2005, which ever

comes first, to use the following described land or facilities

in the above named area:

The proposed access would follow an approximately 14-mile

long bladed alignment between the town of McCarthy and their

home site at Marvelous Millsite (USMS 1082-B), and Spokane

Placer (USMS 875) with about 12.5 miles of the route on

preserve lands.

For the purpose(s) of: Temporary access to two inholdings on

McCarthy Creek in the Wrangell-Saint Elias National Preserve.

The Permittees wish to transfer food, building supplies, and fuel

Appendix F-2

to their inholding using a bulldozer (with blade generally up)

and towing a trailer.

Authorizing legislation or other authority (Re - DO-53):

Title 43 CFR 36.12

NEPA Compliance: CATEGORICALLY EXCLUDED ___

EA/FONSLx, EIS. OTHER APPROVED PLANS

PERFORMANCE BOND: Required __ Not Required_x

Amount $0.00 —

LIABILITY INSURANCE: Required ___ Not Required_x

Amount $0.00

ISSUANCE of this permit is subject to the conditions on the

reverse hereof and appended pages and when appropriate to the

payment of the U.S. Dept. of the Interior, National Park Service

(NPS) of the sum of $_0.00

The undersigned hereby accepts this permit subject to the terms,

covenants, obligations, and reservations, expressed or implied

herein.

Permittee ; ,

Signature Name Date

Permittee P ,

Signature Name Date

Permittee , , =

Signature Name Date

Authorizing Official , ,

Signature Superintendent Date

Appendix F-3

. GENERAL

CONDITIONS OF THIS PERMIT

1. The Permittees shall exercise this privilege subject to the

supervision of the Superintendent, and shall comply with all

applicable laws and regulations of the area.

2. Damages - The Permittees shall pay the United States for

any damage resulting from this use which would not reasonably

be inherent in the use which the Permittees is authorized to

make of the land described in this permit.

3. Benefit - No Member of Congress shall be admitted to any

share or part of this permit or to any benefit that may arise

therefrom: but this provision shall not be construed to extend to

this grant if made with a corporation for its general benefit.

4. Assignment - This permit may not be transferred or assigned

without the consent of the Superintendent, in writing.

5. Revocation - This permit may be terminated upon breach of

any of the conditions herein or at the discretion of the

Superintendent.

6. The Permittees is prohibited from giving false information;

to do so will be considered a breach of conditions and be

grounds for revocation [Re: 36 CFR 2.32(a)(4)}.

7. Permittees will comply with applicable public health and

sanitation standards and codes.

Appendix F-4

SPECIFIC

CONDITIONS OF THIS PERMIT

1. AD-5 Caterpillar or smaller bulldozer pulling a

trailer is the only vehicle authorized by this

permit. Prior approval by the Superintendent is

required if the Permittees want to substitute a

comparable vehicle. This permit does not affect

Permittees’ use of snowmachines (during

periods of adequate snow cover), fixed wing

aircraft, horse or foot for access.

2. Travel pursuant to this permit is authorized

from the date of permit issuance through April

15, 2004; and from October 20, 2004 until

either April 15, 2005 or the expiration of the

permit (whichever comes first). Travel during

the above identified periods is further

conditioned upon the ground being frozen to a

minimum depth of 6 inches and the existence of

snow cover sufficient to protect the resources,

typically more than 6 inches of snow. Stream

crossings will utilize ice or snow bridges; these

bridges must be strong enough to support

permitted vehicles. Open water crossings

require advance approval by the Superintendent

or designee.

3. Before commencing access, the Permittees will

obtain all necessary State of Alaska permits and

U.S. Army Corps of Engineers permits. This

permit does not authorize travel across private

land. Permittees are responsible for securing

permission to cross private land.

Appendix F-5

The Permittees shall notify the Superintendent

48 hours prior to the start of each trip.

However, if after one or more trips are

completed, and the site conditions still allow for

access to proceed, this stipulation may be

modified by the Superintendent.

A maximum of 18 one way trips by bulldozer,

with or without a trailer, are permitted.

The Permittees and the NPS will jointly conduct

a reconnaissance along the proposed alignment

to identify and to determine how to avoid

problem areas before a bulldozer is moved

across the selected alignment. The

Superintendent or his designees may accompany

the Permittees on any or all trips to insure

permit compliance and direct alignment

selection.

The Permittees are responsible for ensuring that

all employees, party members, operators, and

any other persons working for or with the

Permittees comply with the permit.

The bulldozer will travel with the blade up,

except as necessary to build snow bridges at

sites approved by the Superintendent. In

addition, two sections of the alignment, where

material has slumped onto it, would likely need

to be bladed again: 1) near the upper tunnel

bypass, and 2) along the riverbank

approximately one mile south of Marvelous

Millsite. At the upper tunnel bypass, blading of

soils would be within the existing disturbance,

including side-cast. Other short sections of

10.

11.

12.

13.

Appendix F-6

previously bladed side slopes or slopes, with

recent cut and fill, may be bladed with advance

approval by the Superintendent or designee.

Standing live trees with a diameter breast height

(DBH) greater than 3 inches shall not be cut or

cleared without advance approval by the

Superintendent or designee. No trees,

regardless of size, within 300 feet of a water

body may be cut or cleared without advance

approval by the Superintendent.

The use of motorized vehicles to push, blade, or

drag trees is not allowed under this permit.

Removal of downed trees shall be by cutting the

trees into lengths and placing them by hand

lengthwise and parallel to the alignment. __

Bulldozer operators will not execute tight turns

by locking one track, without advance approval

by the Superintendent or designee.

Debris, food and refuse generated by the

Permittees and/or employees and coworkers will

be removed from the Preserve and disposed of

in accordance with State and Federal law.

Any equipment which breaks down or becomes

stuck (i.e., cannot be extricated by means of

immediately available resources) during access

will be reported as soon as possible to the

Superintendent or designees. Equipment must

be removed or stabilized in consultation with

the NPS.

Appendix F-7

Cultural Resources

14.

15.

The Permittees shall not injure, alter, destroy, or

collect any cultural resource site, structure, or

object. Examples of cultural resources within

the area of potential effect are mining camps,

road construction camps, isolated cabins,

tunnels, remains of bridge abutments, and

associated features and artifacts.

If a cultural resources are impacted by the

permitted activities, the Permittees shall cease

the activity, protect the resources, and notify the

Superintendent or designee immediately.

Water Resources

16.

17.

A snow ramp or ice bridge must be constructed

only of snow and water, and must be

substantially free of soil and organic debris. If

water is pumped from the creek to make an ice

bridge, the intake of the pump hose must be

screened to protect fish and their eggs.

The Permittees will avoid impeding the passage

of fish, disrupt fish spawning, adversely

affecting over-wintering or nursery areas

identified by the Superintendent or designee.

The Permittees shall not permanently block off

or change the character or course of any stream.

Fuel Transportation

18.

Fuel for the bulldozer can be cached at a single

location on NPS land along the access corridor,

provided the location of the fuel cache is at least

-_ *

20.

Appendix F-8

100 feet from the active stream channel of fish-

bearing streams (McCarthy Creek, East Fork

McCarthy Creek, Nikolai Creek). The fuel

cache capacity is limited to 55 gallons.

Secondary containment of cached fuel will be

achieved using overpack containers. Advance

notification of 48 hours for the proposed fuel

cache shall be provided to the NPS for review

and approval. Fuel shall not be cached between

April 15 and October 20, 2004. Refueling of

the bulldozer may be allowed adjacent to fuel

caches. When refueling the bulldozer,

Permittees must not leave equipment unattended

while actively refueling. Absorbent materials

will be used while refueling to collect any fuel

that may be spilled during the refueling

operations. A tarp of other secondary

containment must be placed beneath equipment

when refueling.

Fuel containers larger than 5 gallons in size

must be transported within sealed over-pack

drums of plastic or steel. Absorbent pads must

be kept on the bulldozer while traveling on

lands administered by the NPS.

Spills of oil, petroleum products, and hazardous

substances shall be reported tc the Alaska

Department of Environmental Conservation

(ADEC) in accordance with Alaska law.

Concurrent spill notification shal] be provided

to the park Superintendent or designee at the

time notification is provided to ADEC.

Discharge notification and _ reporting

requirements from AS 46.03.755 and 18 AAC

Appendix F-9

75 Article 3 are to be followed by the

Permittees. Refer to attachment #1.

Immediate actions will be taken to confine any

and all spills on land and water to the smallest

area. Any amount of oil or petroleum product

spills, either on water or on land must be

cleaned up and removed in accordance with

ADEC policies and guidelines. Refer to ADEC

Clean-up Requirements: as found on ADEC

website http://www.state.ak.us/dec/spar/csp/

process.htm

The undersigned hereby accepts this permit subject to the terms,

covenants, obligations, and reservations, expressed or implied

herein.

Permittee

Signature Name Date

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