Hale v. Norton ( 2007 )

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; No. 03-36032
HUNTER SHARP, Chief Ranger,
Wrangell-St. Elias National Park D.C. No.
and Preserve; DEPARTMENT OF THE CV-03-00257-A-
INTERIOR; NATIONAL PARK SERVICE;
FRAN MAINELLA, Director of the
 RRB
ORDER
National Park Service; MARCIA WITHDRAWING
BLASZAK, Acting Regional Director OPINION AND
of the National Park Service; all in OPINION
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
1295
1296 HALE v. NORTON
Filed February 5, 2007
Before: Alfred T. Goodwin, Melvin Brunetti, and
William A. Fletcher, Circuit Judges.
Opinion by Judge William A. Fletcher
1298 HALE v. NORTON
COUNSEL
Russell C. Brooks and James S. Burling, Pacific Legal Foun-
dation, Sacramento, California, for the plaintiffs-appellants.
HALE v. NORTON 1299
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, Alaska, for the defendants-intervenors-
appellees.
ORDER
This court’s opinion filed on August 25, 2006, and pub-
lished at 461 F.3d 1092 (9th Cir. 2006), is withdrawn and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.
OPINION
W. FLETCHER, Circuit Judge:
In 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 “clear-
ing” 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
1300 HALE v. NORTON
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 D-4 or D-5 bulldozer towing a six-
teen 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 pro-
posed bulldozer use. In particular, the letter articulated the
NPS’s concern that the Hales were planning to run the bull-
dozer over the route before “freeze up.” The NPS noted that
other inholders in the Park had “been able to adapt to the win-
ter 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 pro-
tected 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
HALE v. NORTON 1301
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 environ-
ment, 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 approx-
imately 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 declara-
tory 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 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-
1302 HALE v. NORTON
tion under the Administrative Procedure Act, 5 U.S.C. § 704,
because there was no final agency action to review.
The Hales timely appealed.
I. Jurisdiction
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).
[1] 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 satis-
fied 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 conse-
quences will flow.”
Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations omit-
ted). “[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 partici-
pate in additional administrative proceedings is different in
kind and legal effect from the burdens attending what hereto-
fore 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
HALE v. NORTON 1303
Greater Chicago v. U.S. Army Corps of Eng’rs, 335 F.3d 607,
616 (7th Cir. 2003).
[2] 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 appeal-
able. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
546 (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
(1978).
The collateral order doctrine arose as a “practical construc-
tion” 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
(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 (1980) (applying the doctrine to deter-
mine the reviewability of an agency order); Rhode Island v.
EPA, 378 F.3d 19, 23-25 (1st Cir. 2004) (discussing the cir-
cuit consensus that the collateral order doctrine applies to
administrative determinations).
[3] The Alaska National Interest Lands Conservation Act
(“ANILCA”) provides limited access rights for inholders such
as the Hales. The statute provides,
Notwithstanding any other provisions of this Act or
other law . . . the State or private owner or occupier
shall be given by the Secretary such rights as may be
necessary to assure adequate and feasible access for
economic and other purposes to the concerned land
. . . . Such rights shall be subject to reasonable regu-
1304 HALE v. NORTON
lations issued by the Secretary to protect the natural
and other values of such lands.
16 U.S.C. § 3170(b). The Hales contend that the guarantee of
“adequate and feasible access” under ANILCA supersedes
other laws, including NEPA, and thus it is unreasonable for
the NPS, acting on behalf of the Secretary of the Department
of the Interior, to subject their permit request to any NEPA
analysis. Framed this way, the Hales’ complaint does not
challenge the result of the permitting process which, as the
district court found, had not produced a final action at the
time of the Hales’ suit. Rather, it challenges the authority of
the NPS to subject the permit request to a NEPA analysis in
the first place. See 43 C.F.R. §§ 36.6, 36.10(d).
[4] Given ANILCA’s unique statutory scheme, the Hales’
challenge is analogous to an appeal from the rejection of a
qualified immunity defense that turns on an issue of law —
an order that squarely falls within the collateral order doc-
trine. See, e.g., Behrens v. Pelletier, 516 U.S. 299, 305
(1996). Qualified immunity provides
an entitlement not to stand trial or face the other bur-
dens of litigation, conditioned on the resolution of
the essentially legal question whether the conduct of
which the plaintiff complains violated clearly estab-
lished law. The entitlement is immunity from suit
rather than a mere defense to liability; and like an
absolute immunity, it is effectively lost if a case is
erroneously permitted to go to trial.
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The Hales
claim that because ANILCA guarantees access
“[n]otwithstanding any . . . other law,” they are entitled to
immunity from the burden that would be imposed by a NEPA
analysis. Like qualified immunity, the Hales’ claim turns on
an “essentially legal question,” and that claim is “effectively
lost” if the NPS conducts the NEPA analysis. If the Hales
HALE v. NORTON 1305
must wait until after the analysis is performed to challenge the
NPS’s permitting decision, any question about the applicabil-
ity of NEPA is likely to fall away. The district court will
review the NPS’s substantive determination of “adequate and
feasible access . . . subject to reasonable regulations” with ref-
erence to the permit issued (or denied), and the NEPA proce-
dure that the NPS followed in reaching its permitting decision
will likely not be relevant to that determination.
[5] We hold that the Hales here challenge an administrative
decision that, like an order that denies a qualified immunity
defense, satisfies the “conclusiveness,” “separability,” and
“unreviewability” prongs of the collateral order doctrine.
First, the regulations incorporating NEPA into the permitting
process are clearly conclusive and not tentative. Second, the
determination of whether the Department of the Interior can
incorporate NEPA into the permitting process is a pure and
independent question of law, separate from whether the
access ultimately afforded is “adequate and feasible” within
the meaning of ANILCA. Third, if the Hales must wait for the
NPS’s ultimate permitting decision, the Department of the
Interior’s decision to apply NEPA will likely become effec-
tively unreviewable. Cf. Meredith v. Fed. Mine Safety &
Health Review Comm’n, 177 F.3d 1042, 1050-52 (D.C. Cir.
1999) (applying collateral order doctrine to review an admin-
istrative order that rejected defendants’ assertion of statutory
immunity). We therefore conclude that we have jurisdiction
over the Hales’ appeal under the collateral order doctrine.
II. Discussion
[6] 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 argu-
ment 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.
1306 HALE v. NORTON
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 nevertheless 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.
[7] ANILCA provides access rights for inholders, but it
also contemplates reasonable government regulation. Under
ANILCA, inholders are entitled to “such rights as may be
necessary to assure adequate and feasible access” to their land
“notwithstanding any . . . other law,” but these access rights
are “subject to reasonable regulations issued by the Secretary
to protect the natural and other values of such lands.” 16
U.S.C. § 3170(b).
NEPA requires the preparation of an environmental impact
statement (“EIS”) for “major Federal actions significantly
affecting the quality of the human environment.” 42 U.S.C.
§ 4332(C). The regulations direct agencies to prepare an “en-
vironmental assessment” (“EA”) to determine whether an EIS
is necessary unless the proposal is one that “[n]ormally
requires” an EIS, or is one that “[n]ormally does not require”
either an EIS or an EA. See 40 C.F.R. § 1501.4(a)-(b). Even
HALE v. NORTON 1307
if an EA is not required, however, “[a]gencies may prepare an
environmental assessment on any action at any time in order
to assist agency planning and decisionmaking.” 40 C.F.R.
§ 1501.3(b).
[8] NEPA ensures that an agency, “in reaching its decision,
will have available, and will carefully consider, detailed infor-
mation concerning significant environmental impacts,” and
will make such information available to the public. Robertson
v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).
“NEPA itself does not mandate particular results, but simply
prescribes the necessary process.” Id. at 350. Significantly,
“[i]f the adverse environmental effects of the proposed action
are adequately identified and evaluated, the agency is not con-
strained by NEPA from deciding that other values outweigh
the environmental costs.” Id.[9] This case differs from Vogler only in that the Depart-
ment of the Interior has, by regulation, incorporated a NEPA
review process into its permit-granting procedure. We see no
per se conflict between NEPA’s information-gathering and
analysis requirements and ANILCA’s requirement of “ade-
quate and feasible access . . . subject to reasonable regulations
. . . to protect the natural and other values of such lands.” 16
U.S.C. § 3170(b). NEPA expressly provides that “to the ful-
lest extent possible . . . the policies, regulations, and public
laws of the United States shall be interpreted and adminis-
tered in accordance with the policies set forth in this [Act].”
42 U.S.C. § 4332. In our view, NEPA helps rather than hin-
ders the NPS in fulfilling its statutory duty under ANILCA to
balance “adequate and feasible access” with the protection of
“natural and other values of [the] lands.”
A requirement that an EA or EIS be prepared in connection
with a routine permit application might conflict with ANIL-
CA’s requirement of “adequate and feasible access,” depend-
ing on the nature of the application and the possible time and
1308 HALE v. NORTON
cost involved in a NEPA review. But that is not the situation
in the present appeal.
[10] In this case, we hold that the NPS acted reasonably in
requiring an EA. The Hales’ request to make sixteen trips
with a bulldozer and trailer during the pre-freeze up period
was an out-of-the-ordinary request. The trips contemplated by
the Hales threatened to cause significantly more environmen-
tal damage than would be caused by the more usual post-
freeze up runs. Their request was tantamount to a request to
rebuild and reopen the overgrown trail that the “MGB road”
had become in the two thirds of a century since it was aban-
doned. Moreover, the Hales’ principal justification for this
request — that it was more dangerous to drive in the winter
— makes no sense to those experienced with conditions in
Alaska. As the NPS wrote in response to the Hales’ request,
other inholders successfully operate similar vehicles, but they
do so only in the winter. Winter use both protects the natural
environment from damage and protects inholders from getting
stuck in the mud. Finally, the NPS committed to complete the
environmental assessment in nine weeks and waived the cost
of the assessment. In short, the NPS appears to have done
everything it could to accommodate the Hales and to facilitate
reasonable access to their property. The Hales, on the other
hand, refused to cooperate in the process, and failed to pro-
vide the NPS with the information it needed to grant an
appropriate permit. In these circumstances, it was entirely
appropriate for the NPS to apply a NEPA analysis to the
Hales’ request.
Conclusion
We hold that the district court had jurisdiction to consider
the Hales’ challenge to the incorporation of NEPA into
ANILCA’s permitting process, and that conducting a NEPA
analysis was consistent with the “adequate and feasible
access” right of ANILCA.
AFFIRMED.