Hale v. Norton
| Citation | 476 F.3d 694 |
| Decision Date | 05 February 2007 |
| Docket Number | No. 03-36032.,03-36032. |
| Parties | Robert HALE; Joshua Hale; Nava S. Sunstar; Butterfly Sunstar, Plaintiffs-Appellants, v. Gale NORTON, Secretary of the Interior; Gary Candelaria, Superintendent, Wrangell-St. Elias National Park and Preserve; 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. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Russell C. Brooks and James S. Burling, Pacific Legal Foundation, Sacramento, CA, 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, AK, for the defendants-intervenors-appellees.
Appeal from the United States District Court for the District of Alaska; Ralph R. Beistline, District Judge, Presiding. D.C. No. CV-03-00257-A-RRB.
Before ALFRED T. GOODWIN, MELVIN BRUNETTI, and WILLIAM A. FLETCHER, Circuit Judges.
ORDER WITHDRAWING OPINION AND OPINION
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This court's opinion filed on August 25, 2006, and published at 461 F.3d 1092 (9th Cir.2006), is withdrawn and replaced by the attached opinion.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.
OPINIONIn 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."
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 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.
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).
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). "[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).
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, 69 S.Ct. 1221, 93 L.Ed. 1528 (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, 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) (); Rhode Island v. EPA, 378 F.3d 19, 23-25 (1st Cir.2004) ().
The Alaska National Interest Lands Conservation Act ("ANILCA") provides limited access rights for inholders such as the Hales. The...
To continue reading
Request your trial
-
Burlison v. U.S.
...that required the landowners to obtain permits for all uses beyond those uses available to the general public); Hale v. Norton, 476 F.3d 694, 699-700 (9th Cir. 2007) (holding that the National Park Service had the authority to require an environmental assessment before granting a permit to ......
- The Wilderness Soc'y v. Kane County
- Chehazeh v. Attorney Gen. of the United States
-
Navajo Nation v. U.S. Dep't of the Interior
...is not enough, Fairbanks, 543 F.3d at 594, nor is a decision that a statute applies to an activity or individual, see Hale v. Norton, 476 F.3d 694, 697 (9th Cir.2007)(holding that a Park Service decision that landowners were subject to permit requirements was not a final agency action under......
-
"A watchdog for the good of the order": the Ninth Circuit's en banc coordinator.
...1989) (en banc). (91.) See Hale v. Norton, 437 F.3d 892 (9th Cir.), withdrawn & superseded, 461 F.3d 1092 (9th Cir. 2006), superseded, 476 F.3d 694 (9th Cir. (92.) See e.g. Smith v. Noonan, 992 F.2d 987 (9th Cir. 1993); Price v. I.N.S., 941 F.2d 878 (9th Cir. 1991), withdrawn & supe......
-
Table of Cases
...re Gruntz), 202 F.3d 1074 (9th Cir. 2000): 18.5 H.L.S. Energy Co., Inc., In re, 151 F.3d 434 (5th Cir. 1998): 18.3(6)(b) Hale v. Norton, 476 F.3d 694 (9th Cir.), cert, denied, 552 U.S. 1076 (2007): 1.4(4) Hammersmith v. TIG Ins. Co., 480 F.3d 220 (3d Cir. 2007): 17.5(1) Hanford Downwinders ......
-
§1.4 - When Does NEPA Apply?
...Fungicide, and Rodenticide Act does not require compliance with NEPA), cert. denied, 484 U.S. 848 (1987). But see Hale v. Norton, 476 F.3d 694 (9th Cir.) (no conflict between NEPA and certain requirements of Alaska National Interest Lands Conservation Act), cert. denied, 552 U.S. 1076 (2007......