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Hale v. Norton (2007)


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Alaska landowners (the Hales) sued for an injunction to compel the National Park Service (NPS) to allow bulldozer access, via a government road, to their inholding within the Wrangell-St. Elias National Park and Preserve (Park). The Hales argued the Alaska National Interest Lands Conservation Act (ANILCA)[1] provided them with access rights not subject to analysis under the National Environmental Policy Act (NEPA).[2] The district court denied the injunction and dismissed the case for lack of subject matter jurisdiction because there was no “final agency action” to review.[3] The Ninth Circuit held that the district court did have jurisdiction under the collateral order doctrine and the particular permit request was subject to NEPA analysis because ANILCA stipulates that access rights are “subject to reasonable regulations issued by the Secretary to protect . . . natural and other values. . . .”[4] Petitions for rehearing and rehearing en banc were denied.

The Hales accessed their property via a poorly maintained 13 mile stretch of road. After a house on the property burned down in 2003, the Hales used a bulldozer to haul in rebuilding supplies until NPS posted a public notice prohibiting most motorized vehicles. The Hales submitted an “emergency” application for a temporary permit, seeking to transport supplies before the winter freeze. NPS notified the Hales that an environmental assessment (EA) would be required by NEPA, and offered to prepare the EA for them free of charge. The Hales did not supply NPS with the information it requested to the conduct the EA, instead opting to file suit seeking an injunction forcing NPS to provide feasible access to their property. In their suit, the Hales also sought declaratory judgments that NPS was violating their right-of-way over the road by requiring a permit and that issuing a permit for use of the road was not a major federal action under NEPA.

The Ninth Circuit reviewed de novo the district court’s dismissal for lack of subject matter jurisdiction.[5] The collateral order doctrine, the court noted, preserves jurisdiction for a “small class” of orders that do not end the proceedings below but are nonetheless treated as final and immediately appealable. [6] The doctrine only embraces orders that “conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and [are] effectively unreviewable on appeal from a final judgment.”[7]

The Ninth Circuit observed that the collateral order doctrine applies to judicial review of administrative proceedings,[8] and examined the Hales’ contention that NPS was precluded by ANILCA’s access rights protections from subjecting the permit request to NEPA analysis. The court likened the Hales’ challenge to an appeal from the rejection of a qualified immunity defense; like a qualified immunity defense, the type of challenge to an administrative decision that the Hales raised met the three prongs (“conclusiveness,” “separability,” and “unreviewability”) of the collateral order doctrine. The court held (1) “the regulations incorporating NEPA into the permitting process [were] clearly conclusive and not tentative,” (2) “the determination of whether [NPS] can incorporate NEPA into the permitting process is a pure and independent question of law,” and (3) “if the Hales must wait for the NPS’s ultimate permitting decision. . . [the] decision to apply NEPA will likely become effectively unreviewable.”[9] The Ninth Circuit concluded the district court had jurisdiction to consider the Hales’ challenge to the use of NEPA in the ANILCA permitting process.

On the substantive statutory claim, the Ninth Circuit first held that a “requirement that an EA or EIS be prepared in connection with a routine permit application might conflict with ANILCA’s requirement of “adequate and feasible access,” depending on the nature of the application and the possible time and cost involved in a NEPA review.” [10]

The court then determined that an EA was appropriate in the situation at hand. The court explained that NPS acted reasonably in requiring an EA because the Hales’ request to make sixteen trips with a bulldozer and trailer before the freeze up threatened to cause more environmental damage than more customary runs made after the freeze up. The court added that NPS attempted to accommodate the Hales by waiving the cost of the EA and completing it in a relatively short period of time.

After determining that it had jurisdiction based on the collateral order doctrine, the Ninth Circuit thus held that a NEPA analysis was not necessarily inconsistent with ANILCA and was appropriate with respect to the Hales’ request to make sixteen bulldozer trips across a government road prior to the freeze-up.

[1] Alaska National Interest Lands Conservation Act, 16 U.S.C. §§ 3101-3233 (2000).

[2] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2000).

[3] Administrative Procedure Act, 5 U.S.C. § 704 (2000).

[4] 16 U.S.C. §§ 3101-3233, 3170(b).

[5] Kaiser v. Blue Cross of Cal., 347 F.3d 1107, 1111 (9th Cir. 2003).

[6] Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).

[7] Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).

[8] See, e.g., FTC v. Standard Oil Co., 449 U.S. 232, 246 (1980) (applying the collateral order doctrine to determine the reviewability of an agency order).

[9] Hale v. Norton, No. 03-36032, 2007 WL 315338 (9th Cir. 2007).

[10]  Id.

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