Hale v. Norton , 437 F.3d 892 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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 No. 03-36032
and Preserve; DEPARTMENT OF THE D.C. No.
INTERIOR; NATIONAL PARK SERVICE;
FRAN MAINELLA, Director of the
 CV-03-00257-A-
RRB
National Park Service; MARCIA
BLASZAK, Acting Regional Director OPINION
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.

Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted
July 12, 2005—Anchorage, Alaska
1549
1550 HALE v. NORTON
Filed February 9, 2006
Before: Alfred T. Goodwin, Melvin Brunetti, and
William A. Fletcher, Circuit Judges.
Opinion by Judge William A. Fletcher
HALE v. NORTON 1551
COUNSEL
Russell C. Brooks and James S. Burling, Pacific Legal Foun-
dation, Sacramento, California, for the plaintiffs-appellants.
Matthew J. Sanders, United States Department of Justice,
Washington, D.C., for the defendant-appellee.
Robert W. Randall and Rebecca L. Bernard, Trustees for
Alaska, Anchorage, Alaska, for the defendants-intervenors-
appellees.
1552 HALE v. NORTON
OPINION
W. FLETCHER, Circuit Judge:
In 2002, plaintiffs-appellants (collectively “the Hales”) pur-
chased 410 acres of land near McCarthy, Alaska. Their prop-
erty 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 with-
out 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 trav-
erse the MGB road with a bulldozer and a trailer. The superin-
tendent promptly responded, offering to assist the Hales in
preparing the necessary applications for a right-of-way per-
mit. Two months later, in September 2003, the Hales submit-
ted 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
HALE v. NORTON 1553
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 approx-
imately 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 injunc-
tion requiring the NPS to provide what they deemed adequate
and feasible access to their property, and a declaratory judg-
ment that the NPS was violating their right-of-way over the
MGB road by requiring a permit. They also sought a declara-
tory 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.
The district court denied the motion for the TRO and dis-
missed 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’ per-
mit application, the district court held that it lacked jurisdic-
tion under the Administrative Procedure Act, 5 U.S.C. § 704,
because there was no final agency action to review.
II. 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).
1554 HALE v. NORTON
III. Jurisdiction
[1] 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. Id.
at 640-42. Assuming, without deciding, that the trail qualified
as a right-of-way, we held that the government could never-
theless 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 his-
toric objects and wildlife therein . . . .” applies with
equal force to regulating an established right of way
within the park. . . . [T]he regulations here are neces-
sary 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.
[2] 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 reason-
able government regulation. Under ANILCA, inholders are
entitled to “such rights as may be necessary to assure ade-
quate and feasible access” to their land, but these rights are
“subject to reasonable regulations issued by the Secretary to
HALE v. NORTON 1555
protect the natural and other values of such lands.” 16 U.S.C.
§ 3170(b).
[3] We also agree with the district court that it was without
jurisdiction to reach the merits of the Hales’ suit. The Admin-
istrative 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 jurisdic-
tion. Any judicial challenge may be brought only after final
agency action.
AFFIRMED.