Hale v. Norton , 461 F.3d 1092 ( 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, No. 03-36032
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
National Park Service; MARCIA ORDER DENYING
BLASZAK, Acting Regional Director REHEARING 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
10203
10204 HALE v. NORTON
Filed August 25, 2006
Before: Alfred T. Goodwin, Melvin Brunetti, and
William A. Fletcher, Circuit Judges.
Opinion by Judge William A. Fletcher
10206 HALE v. NORTON
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.
HALE v. NORTON 10207
ORDER
This court’s opinion filed on February 9, 2006, and pub-
lished at 437 F.3d 892 (9th Cir. 2006), is withdrawn and
replaced by the attached opinion.
With the filing of this new opinion, the panel has voted
unanimously to deny Appellants’ petition for rehearing. Judge
Fletcher has voted to deny the petition for rehearing en banc,
and Judge Goodwin and Brunetti so recommend. The full
court has been advised of the petition for rehearing en banc
and no judge of the court has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35. Appellants’
petition for rehearing and petition for rehearing en banc, filed
March 24, 2006, are DENIED.
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.
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
10208 HALE v. NORTON
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 responded promptly, 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 promptly responded by letter, requesting more
information about the nature of the emergency and the pro-
posed bulldozer use. The letter noted that other inholders in
the Park had used bulldozers for access in the winter months
(that is, after “freeze up”) 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 an envi-
ronmental 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 use of the MGB road
did not constitute a major federal action subject to the require-
HALE v. NORTON 10209
ments of NEPA. The Hales moved for a Temporary Restrain-
ing 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.
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
10210 HALE v. NORTON
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
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 are treated as final and immediately
appealable. 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).
HALE v. NORTON 10211
[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-
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 Department of the Interior 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 doctrine.
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
10212 HALE v. NORTON
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 burdens of NEPA analysis. Like qualified
immunity, the Hales’ claim turns on an “essentially legal
question,” and that claim is “effectively lost” if the NPS con-
ducts the NEPA analysis. If the Hales must wait to challenge
the NPS’s actual permitting decision, the relevance 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 reference to the permit
issued, and the procedure that the NPS followed in reaching
its permitting decision will likely not be relevant to that deter-
mination.
[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.” Third,
if the Hales must wait for the NPS’s ultimate permitting deci-
sion, the Department of the Interior’s decision to apply NEPA
will likely become effectively 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 administrative order that rejected defendants’
assertion of statutory immunity).
HALE v. NORTON 10213
II. Discussion
[6] 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.
[7] 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
protect the natural and other values of such lands.” 16 U.S.C.
§ 3170(b).
10214 HALE v. NORTON
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 that “[n]ormally does not require” either
an EIS or an EA. See 40 C.F.R. § 1501.4(a)-(b). Even 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
conflict between NEPA’s information-gathering and analysis
requirements and ANILCA’s requirement of “adequate 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 fullest extent
possible . . . the policies, regulations, and public laws of the
United States shall be interpreted and administered in accor-
dance with the policies set forth in this [Act].” 42 U.S.C.
§ 4332. In our view, NEPA helps rather than hinders the
Department of the Interior in fulfilling its statutory duty under
HALE v. NORTON 10215
ANILCA to balance “adequate and feasible access” with the
protection of “natural and other values.” We therefore hold
that the incorporation of NEPA into the permit-granting pro-
cedure is consistent with ANILCA.
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 is consistent with the “adequate and feasible access”
right of ANILCA.
AFFIRMED.