Scarborough Citizens Protecting Res. v. U.S. Fish & Wildlife Serv.

• Decision Date: 22 March 2012
• Docket Number: No. 11–1597.,11–1597.
• Citation: 674 F.3d 97
• Parties: SCARBOROUGH CITIZENS PROTECTING RESOURCES; David T. Paul, Paul Austin, Susan DeWitt Wilder, Plaintiffs, Appellants, v. U.S. FISH AND WILDLIFE SERVICE; Marvin Moriarty, Northeast Regional Director, U.S. Fish and Wildlife Service; Paul LePage, Governor, State of Maine; Chandler Woodcock, Commissioner, Maine Department of Inland Fisheries and Wildlife; and Patricia Aho, Commissioner, Maine Department of Environmental Protection,* Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

674 F.3d 97

SCARBOROUGH CITIZENS PROTECTING RESOURCES; David T. Paul, Paul Austin, Susan DeWitt Wilder, Plaintiffs, Appellants,

v.U.S. FISH AND WILDLIFE SERVICE; Marvin Moriarty, Northeast Regional Director, U.S. Fish and Wildlife Service; Paul LePage, Governor, State of Maine; Chandler Woodcock, Commissioner, Maine Department of Inland Fisheries and Wildlife; and Patricia Aho, Commissioner, Maine Department of Environmental Protection,* Defendants, Appellees.

No. 11–1597.

United States Court of Appeals, First Circuit.

Heard Jan. 9, 2012.Decided March 22, 2012.

Stephen F. Hinchman with whom Law Offices of Stephen F. Hinchman, LLC was on brief for appellants.

Evan J. Roth, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief for the federal defendants, appellees.

Paul Stern, Deputy Attorney General, with whom Gerald D. Reid and Mark Randlett, Assistant Attorneys General, Office of the Attorney General, were on brief for the state defendants, appellees.

Before BOUDIN, SELYA and STAHL, Circuit Judges.

BOUDIN, Circuit Judge.

This litigation concerns a segment of the Eastern Trail in Scarborough, Maine. The Eastern Trail is a public recreational trail which is part of a network of trails running along the Eastern Seaboard. http:// www. easterntrail. org. The portion of the Trail at issue in this case is over three miles long, runs through a 32–acre tract of land owned by the state of Maine, and is used in part for recreation and to access the state-managed Scarborough Marsh Wildlife Management Area.

An association and several individuals who regularly use the Trail for recreating and hunting, and who support wildlife conservation (“Scarborough Citizens”) brought suit against the United States Fish and Wildlife Service (“USFWS”) and its Northeast Regional Director, as well as the Governor of Maine and the Commissioners of the Maine Department of Inland Fisheries and Wildlife (“IFW”) and Department of Environmental Protection (“DEP”). Scarborough Citizens alleged that easements conveyed by the state on the parcel of land violate the law.

As alleged in the complaint, in 1961 Maine purchased the tract of land (formerly owned by a railroad and apparently consisting predominately of the Trail itself) exclusively using federal funds granted to the state under the Pittman–Robertson Wildlife Restoration Act, also known as the Federal Aid in Wildlife Restoration Act (“Wildlife Restoration Act”), 16 U.S.C. §§ 669–669k (2006). Funds are granted under the Wildlife Restoration Act only for approved purposes or projects, id. § 669e; the approved purpose for this land was “waterfowl habitat, waterfowl management, and access to waterfowl hunting.”

Beginning in 1962 and continuing through 2005, the state and IFW conveyed various easements on portions of the Trail to the Town of Scarborough, primarily for sanitary pipelines and a town way, as well as to private parties for access to adjoining property. In consequence, the very eastern-most portion of the Trail has become a town road. The bulk of the rest of the Trail is graveled and, pursuant to a 2003 agreement between the Town of Scarborough and IFW, limited to pedestrian and non-motorized vehicle access, save for limited vehicle access for hunting and trapping in October and December.

However, an easement granted by IFW in 2005 and a subsequent permit granted by DEP allowed construction of a road over 766 feet of previously-restricted trail to give vehicular access to a new planned subdivision. In 2008, IFW realized that the property was likely purchased with Wildlife Restoration Act funds and reported that discovery to USFWS. Scarborough Citizens learned of the funding source in 2009 only after filing a request under Maine's Freedom of Access Act with IFW. In its view, the grant of easements—and in particular the construction of a paved, general-use town road—on any portion of the 1961 purchase violated federal restrictions.¹

In 2010, Scarborough Citizens filed a suit for injunctive and declaratory relief, alleging violations of the Wildlife Restoration Act, the National Environmental Policy Act, (“NEPA”), 42 U.S.C. § 4321 et seq. (2006), and state law. Following the magistrate judge's recommendation, Scarborough Citizens Protecting Res. v. U.S. Fish & Wildlife Serv., No. 2:10–cv–00315–DBH, 2011 WL 722411 (D.Me. Feb. 22, 2011), the district court dismissed the federal claims on the merits and declined to exercise supplemental jurisdiction over the state law claims, No. 10–315–P–H, 2011 WL 1131539 (D.Me. Mar. 28, 2011).

In its appeal, Scarborough Citizens argues that the state agency has repeatedly violated the Wildlife Restoration Act and federal regulations in varying respects by conveying nearly ten easements on various portions of the Eastern Trail between 1968 and 2005. The gist of the claim is that these conveyances resulted in uses of the land, initially purchased with funds from the Wildlife Restoration Act, contrary to the purposes for which it was initially acquired.

The Wildlife Restoration Act, enacted in 1937, authorizes the Secretary of the Interior to disburse money derived from excise taxes on hunting equipment to states for “wildlife-restoration projects.” 16 U.S.C. § 669. Funded projects must be approved by the Secretary and conform to standards fixed by him or her, id., and the apportioned funds must be expended only for the project, id. §§ 669e(a), 669k(d)(1). The state is also obliged to maintain completed wildlife-restoration projects. Id. § 669g.

The statute lacks a private right of action, e.g., Ill. State Rifle Ass'n v. Illinois, 717 F.Supp. 634, 638 (N.D.Ill.1989), but most courts, including the district court here, have allowed plaintiffs to challenge federal agency action—including any such action allegedly violating the Wildlife Restoration Act—under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–706 (2006). See, e.g., Sportsmen's Wildlife Def. Fund v. Romer, 29 F.Supp.2d 1199, 1211 (D.Colo.1998). However, under Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004), in an APA challenge to federal agency inaction it must be shown that USFWS “failed to take a discrete agency action that it is required to take.”

We start by asking whether the Wildlife Restoration Act provision cited by Scarborough Citizens imposes a discrete, non-discretionary duty to act on the federal officials. USFWS argues that the claims have been waived; but the district court decided them on the merits and we will treat them as preserved even though only sketchily raised in the complaint. By contrast, the claims initially brought against state officials under the Wildlife Restoration Act were withdrawn voluntarily in the district court and cannot be revived on appeal.

The key statutory provision relied upon reads:

(a) Setting aside funds

Any State desiring to avail itself of the benefits of this chapter shall, by its State fish and game department, submit programs or projects for wildlife restoration ...

(2) The Secretary of the Interior shall approve only such comprehensive plans or projects as may be substantial in character and design and the expenditure of funds hereby authorized shall be applied only to such approved comprehensive wildlife plans or projects and if otherwise applied they shall be replaced by the State before it may participate in any further apportionment under this chapter. No payment of any money apportioned under this chapter shall be made on any comprehensive wildlife plan or project until an agreement to participate therein shall have been submitted to and approved by the Secretary of the Interior.

16 U.S.C. § 669e(a).

Scarborough Citizens focuses on the statutory requirement that if authorized funds are “otherwise applied,” “they shall be replaced by the State before it may participate in any further apportionment”; a regulation, 50 C.F.R. § 80.14(a) (2010), says the same thing. But here the funds were “applied”—and properly so—to acquire the Trail. Neither the statute nor the echoing regulation just cited addresses the issue of the subsequent misuse or disposal of property once acquired; but the regulations do so in the multi-part section 80.14(b) and it is to those provisions that we now turn.

Regulations can, by themselves, not only impose liabilities on non-federal parties but also impose legal duties on federal officers such that their inaction is subject to judicial review under the APA. However, “[t]he limitation to required agency action rules out judicial direction of even discrete agency action that is not demanded by law (which includes, of course, agency regulations that have the force of law).” Norton, 542 U.S. at 65, 124 S.Ct. 2373; accord Veterans for Common Sense v. Shinseki, 644 F.3d 845, 869 (9th Cir.2011); Benzman v. Whitman, 523 F.3d 119, 130 (2d Cir.2008).

The pertinent regulations provide:

§ 80.14 Application of Wildlife and Sport Fish Restoration Program funds.

(a) States must apply Wildlife and Sport Fish Restoration Program funds only to activities or purposes approved by the Regional Director. If otherwise applied, such funds must be replaced or the State becomes ineligible to participate.

(b) Real property acquired or constructed with Wildlife and Sport Fish Restoration Program funds must continue to serve the purpose for which acquired or constructed.

(1) When such property passes from management control of the State fish and wildlife agency, the control must be fully restored to the State fish and wildlife agency or the real property must be replaced using non-Federal funds not derived from license revenues. Replacement property must be of equal value at current market prices and with equal benefits as the original property. The State may have up to 3 years from the date of notification by the Regional Director to acquire replacement property before becoming ineligible.

(2) When such property is...