Hall v. Norton

• Decision Date: 08 January 2001
• Docket Number: No. 99-16153,DEFENDANTS-APPELLEES,PLAINTIFF-APPELLANT,99-16153
• Citation: 266 F.3d 969
• Parties: (9th Cir. 2001) ROBERT W. HALL,, v. GALE A. NORTON, SECRETARY OF THE INTERIOR; <A HREF="#fr1-*" name="fn1-*">* UNITED STATES DEPARTMENT OF THE INTERIOR,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 969

266 F.3d 969 (9th Cir. 2001)

ROBERT W. HALL, PLAINTIFF-APPELLANT, v. GALE A. NORTON, SECRETARY OF THE INTERIOR; ^* UNITED STATES DEPARTMENT OF THE INTERIOR, DEFENDANTS-APPELLEES.

No. 99-16153

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Submitted January 8, 2001^**

Filed September 12, 2001

[Copyrighted Material Omitted] Robert W. Hall, Las Vegas, Nevada, plaintiff-appellant, pro se.

Andrew M. Mergen, Stephen M. McFarlane, Steve Herm, and Kathryn E. Kovacs, Dept. of Justice, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the District of Nevada Lloyd D. George, District Court Judge, Presiding. D.C. No. CV-S-97-01146-LDG (RJJ)

Before: Alfred T. Goodwin, Susan P. Graber and Richard A. Paez, Circuit Judges.

Paez, Circuit Judge

Pro se Plaintiff Robert W. Hall, a resident of Las Vegas, Nevada, brought this action against the Secretary of the Interior, alleging that the Bureau of Land Management (BLM), in approving an exchange of public land in the Las Vegas Valley for environmentally sensitive land owned by Del Webb Conservation Corporation (Del Webb), violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§§§ 4321-4370e, and the Clean Air Act, 42 U.S.C. §§§§ 7401-7671q. The district court granted summary judgment in favor of the Secretary, ruling that (1) it lacked subject matter jurisdiction over the Clean Air Act claim; and (2) Hall lacked standing to bring the NEPA claim. In this appeal, Hall challenges both of these rulings. Hall also contends that the district court abused its discretion when it denied his request for discovery on his NEPA claim and violated his due process rights when the court granted summary judgment without holding a hearing.

We affirm the district court's determination that it lacked subject matter jurisdiction over Hall's Clean Air Act claim. However, we reverse the district court's determination that Hall lacked standing and remand for further consideration on the merits of the NEPA claim. We also conclude that the district court did not abuse its discretion in denying Hall's request for discovery.¹

I. Background

The BLM manages approximately 48 million acres of public land in Nevada, including significant holdings in the Las Vegas Valley. In the last decade, the Las Vegas Valley has been among the fastest growing metropolitan areas in the United States, and the population growth has created significant interest among real estate developers in acquiring federal lands in the Las Vegas Valley. See Environmental Assessment: Del Webb Land Exchange Proposal, at 1-1 (May 9, 1997); Office of Inspector General, Final Audit Report on Nevada Land Exchange Activities, Bureau of Land Management, No. 96-I-1025, at 1.

The BLM is authorized to exchange federal lands that are under its management for non-federal lands if an exchange will serve the public interest. 43 U.S.C. §§ 1716. Prior to the land exchange at issue here, the BLM had completed a number of exchanges relinquishing federal lands in the Las Vegas Valley to private developers for non-federal lands. The BLM has identified substantial additional lands in the Las Vegas Valley as "available for disposal" to private developers.

This case arises out of Hall's objections to one particular land exchange. In 1996, the BLM entered into a non-binding agreement to initiate an exchange of 4,975 acres of federal land located in the Las Vegas Valley with Del Webb in exchange for privately owned lands in Nevada that the BLM deemed environmentally sensitive. Del Webb's proposal contemplates that Del Webb will build a planned community of approximately 11,200 homes on the land.

The BLM could not complete the transaction until it complied with the procedural requirements of NEPA. NEPA requires a federal agency to prepare a detailed Environmental Impact Statement (EIS) for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. §§ 4332(2)(C). Federal regulations permit an agency that is planning a major federal action to conduct a less exhaustive Environmental Assessment (EA) first to determine whether the proposed action will "significantly affect" the environment and thus whether an EIS is required. 40 C.F.R. §§§§ 1501.4(b), 1508.9. If the EA shows that the proposed action will have no significant impact, "the agency may issue a finding of no significant impact (`FONSI') and then execute the action." Sierra Club v. Babbitt, 65 F.3d 1502, 1505 (9th Cir. 1995); see also 40 C.F.R. §§§§ 1508.9, 1508.13.

In 1997, the BLM prepared an EA for the Del Webb land exchange. The EA acknowledged that Las Vegas Valley is not in attainment with federal air-quality standards for carbon monoxide or particulate matter (dust and soot). The EA estimated the additional emissions of carbon monoxide and particulate matter that Del Webb's development of the land would generate. The EA cited a number of factors that it suggested demonstrated that the BLM land disposals would have no significant effect on overall development and air-pollution levels in the Las Vegas Valley. On May 21, 1997, based on the EA, the BLM issued a FONSI and a "Decision Record for the Del Webb Conservation Holding Corp. Exchange," approving the first stage of the Del Webb land exchange.

Hall brought this action in the United States District Court for the District of Nevada, raising a number of legal objections to the Del Webb land exchange, including the two principal claims Hall raises on appeal: (1) that the BLM failed to comply with NEPA; and (2) that the disposal of the federal land, by exacerbating the air quality problems of the Las Vegas Valley, violates the "conformity" provision of the Clean Air Act, CAA §§ 176(c)(1), 42 U.S.C.§§ 7506(c)(1). His lawsuit was consolidated with three other cases that raised similar challenges to the land exchange.²

The district court dismissed Hall's Clean Air Act claim on the ground that Hall filed his claim in the wrong court. The district court reasoned that because the United States Environmental Protection Agency (EPA) has exempted land exchanges from challenge under the conformity provision, see 40 C.F.R. §§ 93.153(c)(2)(xiv), Hall must assert that EPA's categorical exemption is invalid. And the district court concluded that, under 42 U.S.C. §§ 7607(b)(1), a challenge to the validity of a nationally applicable regulation can be brought only in the United States Court of Appeals for the District of Columbia. Accordingly, the court dismissed Hall's Clean Air Act claim. In doing so, the court rejected Hall's request that this claim be transferred rather than dismissed.

The district court also denied a pending request by Hall for discovery, ruling that judicial review of the remaining NEPA claim was limited to the administrative record.

The BLM then moved for summary judgment on Hall's NEPA claim, arguing that Hall lacked standing and that the NEPA claim was meritless. In response to the BLM's standing argument, Hall submitted an affidavit, which averred that: (1) he lives in the Las Vegas Valley; (2), since moving to the area, he "ha[s] developed a lung sensitivity to dust and air pollution" and experiences "a persistent and worrisome cough"; (3) he attributes his respiratory discomfort to Las Vegas' unsafe levels of airborne pollutants; (4) past BLM land exchanges and private development of previously owned federal land had resulted in significant emissions of particulate matter; and (5) he "regularly travel[s], shop[s], eat[s], visit[s] entertainment facilities, attend[s] meetings, [and] conduct[s] personal business and public service business through-out" areas of the Las Vegas Valley that have registered unsafe levels of airborne pollutants. As for the merits of the NEPA claim, Hall asserted that the BLM's own analysis demonstrated that Del Webb's development project would have a substantial negative effect on air quality in the Las Vegas Valley, that in any event the BLM's figures were "low and misleading," and that the BLM had not adequately considered the cumulative impacts of BLM actions in the Las Vegas Valley.

Without hearing oral argument, the district court granted the BLM's motion for summary judgment. The district court held that Hall lacked standing, particularly relying on its finding that "Hall's claim of injury from exposure to dust and air pollution as a result of land development in the Las Vegas area . . . fails to provide specific facts linking those harms to the particular lands which are the subject of the exchange." The district court also briefly addressed the merits of Hall's NEPA claim, in combination with similar contentions raised by the plaintiffs in the related cases. The district court found, in light of the EA's estimates of the emissions that could be expected from the Del Webb development, that the BLM's conclusion that the emissions would not be significant was not arbitrary and capricious. The district court, however, did not address fully Hall's cumulative impacts argument.

II. Clean Air Act

We turn first to Hall's claim that the BLM's decision to transfer federal land to Del Webb violates the conformity provision of the Clean Air Act, CAA §§ 176(c)(1), 42 U.S.C. §§ 7506(c)(1).³ We review de novo the district court's determination that it lacked subject matter jurisdiction. Hexom v. Or. Dep't of Transp., 177 F.3d 1134, 1135 (9th Cir. 1999).

After notice-and-comment rulemaking, EPA published a final rule exempting certain categories of government action from the conformity requirement. Determining Conformity of General Federal Actions to State or Federal Implementation Plans, 58 Fed. Reg. 63214 (Nov. 30, 1993). The rule exempts transfers of land by government agencies. 40 C.F.R. §§ 93.153(c)(2)(xiv). As the district court noted, Hall's Clean Air Act challenge to the Del Webb land exchange fails if this exemption is valid, so Hall's challenge necessarily must be considered as a...