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Hale v. Norton

ELR Citation: 37 ELR 20037
Nos. No. 03-36032, (9th Cir., 02/05/2007)

The court held that it was appropriate for the National Park Service (NPS) to conduct a National Environmental Policy Act (NEPA) analysis prior to granting property owners' request for an access permit under the Alaska National Interest Lands Conservation Act (ANILCA). After the owners' home burned down, the owner sought an access permit so that bulldozers could enter their land to bring in supplies for a new home before "freeze up." The NPS concluded that an environmental assessment (EA) would be required before it could grant a permit. The owners then filed suit. The district court dismissed the case for lack of subject matter jurisdiction because there was no final agency action. Yet here, the owners challenge an administrative decision that satisfies the "conclusiveness," "separability," and "unreviewability" prongs of the collateral order doctrine. Hence, the court has jurisdiction. As for the merits, the NPS acted reasonably in requiring an EA. There is no per se conflict between NEPA's information-gathering and analysis requirements and ANILCA's requirement of "adequate and feasible access." While a requirement that a NEPA analysis be prepared in connection with a routine permit application might conflict with ANILCA in certain situations, that is not the case here. Pre-freeze up bulldozer use would likely cause significantly more environmental damage than would be caused by the more usual post-freeze up runs. Moreover, the NPS did everything it could to accommodate the owners and to facilitate reasonable access to their property. The owners, on the other hand, refused to cooperate in the process and failed to provide the NPS with the information it needed to grant an appropriate permit. The court, therefore, affirmed the lower court's dismissal of the case, albeit on different grounds.

[This decision replaces the courts prior decision at 36 ELR 20037.]