Akiak Native Community v. USPS

• Decision Date: 25 May 2000
• Docket Number: No. 98-35466,98-35466
• Parties: (9th Cir. 2000) AKIAK NATIVE COMMUNITY; NATIVE VILLAGE OF ATMAUTLUAK; KASIGLUK TRADITIONAL COUNCIL; ORGANIZED VILLAGE OF KWETHLUK; NATIVE VILLAGE OF NAPAKIAK; NAPASKIAK TRIBAL COUNCIL; NATIVE VILLAGEOF NUNAPITCHUK; THE ASSOCIATIONOF VILLAGE COUNCIL PRESIDENTS; AKIACHAK NATIVE OPINION COMMUNITY, Plaintiffs-Appellants, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1140

213 F.3d 1140 (9th Cir. 2000)

AKIAK NATIVE COMMUNITY; NATIVE VILLAGE OF ATMAUTLUAK; KASIGLUK TRADITIONAL COUNCIL; ORGANIZED VILLAGE OF KWETHLUK; NATIVE VILLAGE OF NAPAKIAK; NAPASKIAK TRIBAL COUNCIL; NATIVE VILLAGEOF NUNAPITCHUK; THE ASSOCIATIONOF VILLAGE COUNCIL PRESIDENTS; AKIACHAK NATIVE OPINION COMMUNITY, Plaintiffs-Appellants, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee.

No. 98-35466

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted January 4, 1999

Filed May 25, 2000

[Copyrighted Material Omitted] Robert W. Randall, Trustees for Alaska, Anchorage, Alaska, for the plaintiffs-appellants.

Joan M. Pepin, United States Department of Justice, Washington, D.C., for the defendant-appellee.

Appeal from the United States District Court for the District of Alaska; John W. Sedwick, District Judge, Presiding. D.C. No.CV-97-00304-JWS.

Before: William C. Canby, Jr. and Susan P. Graber, Circuit Judges, and Lloyd D. George,¹ District Judge.

CANBY, Circuit Judge:

Plaintiffs, several Alaska Native communities, appeal from the district court's summary judgment in favor of defendant, the United States Postal Service. Plaintiffs sought to enjoin the Postal Service's Hovercraft Demonstration Project ("the Project"), an experimental program that delivers non-priority mail by surface hovercraft instead of by fixed-wing aircraft to eight remote Alaska Native villages on the Kuskokwim River and two of its tributaries. Plaintiffs allege that the project violates the Coastal Zone Management Act (CZMA), 16 U.S.C. S 1456, and the National Environmental Policy Act (NEPA), 42 U.S.C. S 4332.

Plaintiffs contend that the Project violates CZMA because it is inconsistent with Alaska's coastal management program. Plaintiffs argue that the Project violates NEPA because the Postal Service's final Environmental Assessment contains errors, omissions, and failures of analysis that invalidate its "Finding of No Significant Impact."

Because we find no infirmities under either CZMA or NEPA, we affirm the district court's judgment.

Background and Procedural History

In response to an unsolicited suggestion of a cheaper means of delivering parcel mail to specified locations, the Postal Service proposed to conduct a two-year experimental program to determine the feasibility of using hovercraft for delivery of certain types of parcel mail to eight remote Alaskan villages--the Hovercraft Demonstration Project. Although hovercraft are capable of moving over land, the Postal Service's plan was to use them only for travel on rivers. In 1995, the Postal Service issued a notice of intent to prepare a study of the environmental effects of conducting the Project. The initial scoping process identified several areas of concern, including the Project's noise and potential effects on fish and wildlife, endangered species, subsistence activities, and commercial fishing.

After consulting with the U.S. Department of Transportation, the Postal Service prepared a draft Environmental Assessment in which it concluded that the Project would not have a significant impact on the environment. The Postal Service circulated the draft Environmental Assessment for public comment in April 1997. The United States Fish and Wildlife Service and the Alaska Department of Fish and Game disagreed with the Environmental Assessment's conclusion that the impacts on fish, wildlife, and subsistence activities would be insignificant. Despite these objections, the Postal Service released the final Environmental Assessment and a Finding of No Significant Impact in July 1997. The Project commenced on July 14, 1997.

Plaintiffs filed this action in the United States District Court for the District of Alaska, alleging violations of NEPA and CZMA. The district court granted summary judgment in favor of the Postal Service, and plaintiffs appealed.

Standard of Review

We review de novo a grant of summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998). Judicial review of actions under CZMA and NEPA ordinarily is governed by the Administrative Procedure Act (APA), 5 U.S.C. SS 551-559, 701-706. The Postal Service presents a special case, however. The Postal Reorganization Act provides that, except to the extent that the Postal Service has adopted such laws as rules or regulations, "no Federal law dealing with public or Federal contracts, property, works, officers, employees, budgets, or funds, including the provisions of chapters 5 and 7 of title 5 [of the APA], shall apply to the exercise of the powers of the Postal Service." 39 U.S.C. S 410(a). There is no longer any dispute that the Postal Service has adopted the relevant provisions of CZMA and NEPA, and that the standard of review of the APA applies. We therefore may set aside the Postal Service's action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. S 706(2)(A); see also Anaheim Mem'l Hosp. v. Shalala, 130 F.3d 845, 849 (9th Cir. 1997). The "arbitrary or capricious" standard is appropriate for resolutions of factual disputes implicating substantial agency expertise. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376-77 (1989). Purely legal questions are reviewed de novo. Wagner v. National Transp. Safety Bd., 86 F.3d 928, 930 (9th Cir. 1996).

I. Coastal Zone Management Act (CZMA)

Plaintiffs contend that the Project violated CZMA. CZMA requires that development projects in a coastal zone must, "to the maximum extent practicable," be consistent with approved state management programs. 16 U.S.C. S 1456(c)(2). Federal agencies are required to provide state agencies with a consistency determination at least ninety days before final approval of a project unless both the federal agency and the state agency agree to a different schedule. 15 C.F.R. S 930.34(b). Once the consistency determination is submitted to the state, the "State agency shall inform the Federal agency of its agreement or disagreement with the Federal agency's consistency determination." 15 C.F.R.S 930.41(a). Under Alaska law, coastal zone activity must be "consistent with the applicable district program and [state ] standards." Alaska Admin. Code tit. 6, S 80.010(b). The applicable district management program for the Project is the Cenaliuriit Coastal Management Plan, and the relevant state program is the Alaska Coastal Management Program. See Alaska Stat. SS 46.40.010, 46.40.030.

Following the Postal Service's consistency determination, the Alaska Division of Governmental Coordination issued a Final Consistency Response concluding that, subject to four conditions, the Project is "consistent to the maximum extent practicable" with both the Alaska and the Cenaliuriit Plans.

Plaintiffs contend that, even with the four conditions, the Project violates the habitat and subsistence standards of the Alaska and Cenaliuriit Plans, thus violating CZMA's consistency provisions. But the Alaska Division of Governmental Coordination and the Postal Service agreed that the Project was consistent with the Plans, and we will not set aside that agreed conclusion without a "compelling reason. " Save Lake Wash. v. Frank, 641 F.2d 1330, 1339 (9th Cir. 1981). Plaintiffs contend that there are at least three such "compelling reasons": (1) the Postal Service took action without waiting ninety days after the consistency determination, as required by regulation; (2) the Postal Service failed to comply with the conditions outlined in Alaska's Consistency Determination; and (3) the Postal Service commenced the Project before Alaska actually issued its Final Consistency Response. We find none of these reasons compelling.

A. The Ninety-Day Requirement

There is no question that the Postal Service initiated the Project without waiting ninety days after it sent its consistency determination to the State. But the regulations require a ninety-day interval "unless both the Federal agency and the State agency agree to an alternative notification schedule." 15 C.F.R. S 930.34(b); see also 15 C.F.R.S 930.41(c). Here, the administrative record is clear that the two agencies had agreed on a different time interval, but it does not specify what the interval is. The Postal Service asserts that the agreement was on a sixty-day interval, and it provided the district court with extra-record evidence supporting its contention--the transcript of a hearing of the Alaska Coastal Policy Council. The district court properly considered this evidence because it is explanatory "background information" that does not bear on the substantive merits of the agency's decision. ASARCO, Inc. v. United States Envtl. Protection Agency, 616 F.2d 1153, 1159-60 (9th Cir. 1980); see also Thompson v. United States Dep't of Labor, 885 F.2d 551, 555 (9th Cir. 1989). In light of the agreement between the agencies on a different period, the lack of a ninety-day interval is far from a compelling reason to interfere with the consistency agreement.

B. The Postal Service's Failure to Comply with Alaska's Conditions

Contrary to the contention of Plaintiffs, the Postal Service did submit a Draft Monitoring Plan to the State before initiating the Project, as required by one of the conditions insisted upon by the Alaska Division of Governmental Coordination. The Draft Monitoring Plan was submitted to the Alaska agency on July 11, 1997--three days prior to the commencement of the Project.²

C. Commencement of the Project Before the State Issued its Final Consistency Response

Plaintiffs next argue that the Postal Service did not, in fact, rely on Alaska's consistency determination because the Project commenced before Alaska issued its final consistency determination. The Postal Service did, however, receive Alaska's preliminary consistency determination before the Project began, and that preliminary determination found that the Project was consistent with applicable state law. Alaska's final consistency...