Fitzgerald v. Harris

United States Court of Appeals
For the First Circuit

No. 08-1306

CHARLES FITZGERALD; KENNETH CLINE,

Plaintiffs, Appellants,

v.

WILLARD R. HARRIS, JR., in his capacity as
Director of the Maine Bureau of Parks and Lands,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,
Selya and Boudin, Circuit Judges.

David A. Nicholas with whom Bruce M. Merrill was on brief
for appellants.
Paul Stern, Deputy Attorney General, with whom G. Steven
Rowe, Attorney General, and Gerald D. Reid, Assistant Attorney
General, were on brief for appellee.

December 5, 2008
 LYNCH, Chief Judge. This case raises the issue of

whether a Maine statute governing the management of a state-

administered river, the Allagash Wilderness Waterway ("AWW"), Me.

Rev. Stat. Ann. tit. 12, § 1882, is preempted by certain sections

of a federal statute, the Wild and Scenic Rivers Act ("WSRA"), 16

U.S.C. § 1271 et seq.

Plaintiffs Charles FitzGerald and Kenneth Cline

(collectively "FitzGerald") are avid canoeists who sued Willard R.

Harris, Director of the Maine Bureau of Parks and Lands, seeking a

declaration that the Maine statute is preempted by federal law, as

well as injunctive relief against the enforcement of the Maine

statute. Their essential complaint is that the provisions of

Maine's statute maintaining certain bridges and public access

points to the AWW destroy the "wild" character of the river. There

have been, to our knowledge, no prior federal courts of appeals

decisions squarely involving claims of preemption of state statutes

by the WSRA, which was enacted in 1968.

The district court granted Harris's motion to dismiss

under Fed. R. Civ. P. 12(b)(6), adopting the magistrate judge's

recommended decision holding that the Maine statute is not

preempted by federal law. We affirm.

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 I.

A. The Federal Statutory Structure

Congress enacted the WSRA to "preserve . . . selected

rivers or sections thereof in their free-flowing condition[,] to

protect the water quality of such rivers[,] and to fulfill other

vital national conservation purposes." 16 U.S.C. § 1271. Congress

described the eligibility criteria for inclusion in the system of

protected rivers as follows:

A wild, scenic or recreational river
area eligible to be included in the system is
a free-flowing stream and the related adjacent
land area that possesses one or more of the
values referred to in section 1271 of this
title. Every wild, scenic or recreational
river in its free-flowing condition, or upon
restoration to this condition, shall be
considered eligible for inclusion in the
national wild and scenic rivers system and, if
included, shall be classified, designated, and
administered as one of the following:
(1) Wild river areas -- Those rivers or
sections of rivers that are free of
impoundments and generally inaccessible except
by trail, with watersheds or shorelines
essentially primitive and waters unpolluted.
These represent vestiges of primitive America.
(2) Scenic river areas -- Those rivers
or sections of rivers that are free of
impoundments, with shorelines or watersheds
still largely primitive and shorelines largely
undeveloped, but accessible in places by
roads.
(3) Recreational river areas -- Those
rivers or sections of rivers that are readily
accessible by road or railroad, that may have
some development along their shorelines, and
that may have undergone some impoundment or
diversion in the past.

Id. § 1273(b).

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 Rivers may be designated for protection under the WSRA in

one of two ways: (1) by act of Congress under section 2(a)(i); or

(2) by application of a state to the Secretary of the Interior

under section 2(a)(ii). Id. § 1273(a). Those rivers included

under section 2(a)(ii) "are to be permanently administered as wild,

scenic or recreational rivers by an agency or political subdivision

of the State or States concerned." Id.

Those two methods for inclusion create a system of both

state- and federally-administered rivers. State-administered

rivers are those rivers designated after a state applies to the

federal Secretary of the Interior under section 2(a)(ii).

Federally-administered rivers are those established by Congress

under section 2(a)(i). A list of federally-administered rivers is

contained in 16 U.S.C. § 1274. When Congress creates a federally-

administered river, it designates the federal department charged

with managing the river. See, e.g., id. § 1274(a)(1) (designating

the Middle Fork of the Clearwater River in Idaho as a federally-

administered river to be managed by the Secretary of Agriculture);

id. § 1274(a)(8) (designating a portion of the Wolf River in

Wisconsin as a federally-administered river to be managed by the

Secretary of the Interior).

A single river may have zones that are state-administered

and others that are federally-administered. E.g., id. § 1274(a)(9)

(designating a section of the Lower Saint Croix River as federally-

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administered and providing that the governors of Wisconsin and

Minnesota may apply to have another segment designated as state-

administered). The AWW is entirely a state-administered river.

The WSRA, like many cooperative federalism statutes, uses

carrots and sticks to encourage states to comply with its

objectives. The carrots include three categories of benefits:

protection, assistance, and funding. The protections are primarily

contained in 16 U.S.C. § 1278, entitled "Restrictions on water

resources projects." Those protections: (1) prohibit construction

projects licensed by the Federal Energy Regulatory Commission on or

directly affecting a designated river; (2) prevent all United

States agencies or departments from assisting by any means in the

construction of any water resources project or from recommending

any water resources project that would have "a direct and adverse

effect on the values for which such river was established"; and (3)

require prior notice to certain secretaries of federal departments

before requesting authorization or appropriations for water

resources projects and give special notice to Congress of the

conflict between the project and the values protected by the WSRA.

See id. § 1278(a).

Executive agencies may also assist the states in managing

their rivers as set forth in 16 U.S.C. § 1282, entitled "Assistance

to State and local projects." The Secretary of the Interior must

encourage and assist the states "in formulating and carrying out

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their comprehensive statewide outdoor recreation plans" to consider

the "needs and opportunities for establishing State and local wild,

scenic and recreational river areas." Id. § 1282(a). The

Secretaries of the Interior and Agriculture and the heads of other

federal agencies "shall assist, advise, and cooperate" with the

states "to plan, protect, and manage river resources," which may be

accomplished through "written agreements or otherwise." Id.

§ 1282(b)(1). Further assistance under the WSRA may be made

available to volunteers and volunteer organizations in the form of

federal "facilities, equipment, tools, and technical assistance."

Id. § 1282(b)(3). The authority of federal agencies to negotiate

agreements regarding the management of protected rivers is,

however, notably restricted: the issuance of a permit or other

authorization cannot be conditioned on such an agreement. Id.

§ 1282(b)(4).

As for financial assistance to participating states, the

Secretary of the Interior must assist the states in proposals for

financial assistance under the Water Conservation Fund Act of 1965.

Id. § 1282(a). The Secretaries of the Interior and Agriculture or

other federal agency heads may enter into agreements for "limited

financial or other assistance to encourage participation in the

acquisition, protection, and management of river resources." Id.

§ 1282(b)(1). Yet despite this financial assistance, Congress has

been clear that the states must fund the administration of their

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own designated rivers. Id. § 1273(a) ("Each river designated under

clause (ii) shall be administered by the State or political

subdivision thereof without expense to the United States other than

for administration and management of federally owned lands.").

There are also sticks to encourage state compliance.

Congress chose not to provide the stick of an explicit cause of

action to enforce the goals of the WSRA against the states. But

one available stick is the denial of the benefits described above.

Another is that federal agencies, such as the Army Corps of

Engineers, may refuse to grant needed permits for bridge

construction where they consider a river not to be in compliance.

There is a third stick -- the removal of a state-administered river

from the system of protected rivers, either by Congress or the

relevant federal agencies. The Departments of the Interior and

Agriculture have recognized the power of the Secretary of the

Interior to reclassify or withdraw a mismanaged section 2(a)(ii)

river from the wild and scenic rivers system. See U.S. Dep'ts of

the Interior & Agric., Guidelines for Evaluating Wild, Scenic and

Recreational River Areas Proposed for Inclusion in the National

Wild and Scenic Rivers System Under Section 2, Public Law 90-542 6

(1970) ("Future construction of such structures that would have a

direct and adverse effect on the values for which that river area

was included in the national system . . . would not be permitted.

In the case of rivers added to the national system pursuant to Sec.

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2(a)(ii), such construction could result in a determination by the

Secretary of the Interior to reclassify or withdraw the affected

river area from the system."). FitzGerald denies that there is any

such power in the Secretary of the Interior, arguing that only

Congress may downgrade or remove rivers. We need not resolve this

dispute to decide this case.

B. The AWW's Inclusion Under the WSRA

The AWW is approximately eighty-five miles long and

connects a series of forty lakes and ponds, as well as numerous

streams and brooks in northern Maine. It has provided a wilderness

canoeing experience for centuries. Henry David Thoreau canoed the

river during July 1857. He wrote of his experience:

It is wonderful how well watered this country
is. . . . Generally, you may go in any
direction in a canoe, by making frequent but
not very long portages. You are only
realizing once more what all nature distinctly
remembers here, for no doubt the waters flowed
thus in a former geological period, and
instead of being a lake country, it was an
archipelago.

H.D. Thoreau, The Maine Woods 251-52 (1864).

Before Congress passed the WSRA, Maine took independent

steps to protect the AWW through the Allagash Wilderness Waterway

Act of 1966, now codified at Me. Rev. Stat. Ann. tit. 12, § 1871 et

seq. The Act defines an eighty-five mile stretch of the Allagash

River as the AWW, id. § 1872(12), and establishes a "restricted

zone" extending between a minimum of 400 feet and maximum of 800

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feet in width around the watercourse to "preserve, protect and

develop the maximum wilderness character of the watercourse," id.

§ 1873(3). The Act leaves administration of the AWW largely to

Maine's Bureau of Parks and Lands. Id. § 1874. The Bureau is

empowered to enact rules and regulations governing the AWW to

preserve "the natural beauty, historic integrity and character of

the Allagash Wilderness Waterway." Id. § 1803. Before 2006, the

state Act further provided that "[t]he bureau may determine the

location of access points, control stations and watercourse

crossings within the waterway." Id. § 1882 (2005). In this suit,

FitzGerald challenges the amendments made to § 1882 in 2006.

The AWW was included for protection under section

2(a)(ii) of the WSRA in 1970. On April 10, 1970, then-Maine

Governor Kenneth M. Curtis requested that then-Secretary of the

Interior Walter J. Hickel designate a portion of the AWW as a

state-administered "wild" river under section 2(a)(ii) of the WSRA.

On May 4, 1970, Governor Curtis asked Secretary Hickel to include

the entire AWW under the WSRA and submitted a report on the AWW in

support of the state's application. On July 13, 1970, Secretary

Hickel "determined that the entire Allagash Wilderness Waterway

meets the requirements for classification as a wild river area

under the provisions of the Wild and Scenic Rivers Act," 35 Fed.

Reg. 11,525, 11,525 (July 17, 1970), and approved the AWW "as a

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wild river area to be administered by the State of Maine," id. at

11,526.

In the Notice of Approval, Secretary Hickel recognized

that there were three small dams on the AWW, six established areas

for water aircraft traffic, various private logging roads, and

trails for snowmobile use along the AWW. Id. With respect to

public access to the AWW, Secretary Hickel noted:

Public access over private roads will be
permitted to and along a portion of Telos Lake
at the southern end of the waterway and to the
northern boundary at West Twin Brook.
Existing private roads within the waterway
which have been developed for logging purposes
will be closed to public use. These private
roads do not create a substantial impact on
the overall wilderness character of the river.

Id. As to bridges over the AWW, Secretary Hickel stated that

"[t]emporary bridges for short-term logging purposes may be

authorized by the State. Any such crossing is designed to provide

minimum impact on the wilderness character of the waterway." Id.

Secretary Hickel also found that "[t]here is no substantial

evidence of man's intrusion within the 400- to 800-foot restricted

zone adjoining the watercourse." Id.

After the 1970 designation of the AWW as a state-

administered wild river, the Maine Park and Recreation Commission,

and later the Maine Bureau of Parks and Lands, continued to

administer the AWW under the terms of the state Allagash Wilderness

Waterway Act of 1966. On April 26, 2006, Maine amended part of the

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Allagash Wilderness Waterway Act, the relevant section of which is

now codified at Me. Rev. Stat. Ann. tit. 12, § 1882, to provide for

the maintenance of six seasonal motor vehicle access points to the

edge of the AWW, id. § 1882(1), five seasonal motor vehicle access

points to short trails leading to the AWW, id. § 1882(2), and six

permanent bridges over the AWW, id. § 1882(4). The motor vehicle

access points and bridges described in the statute existed before

the AWW's designation as a "wild" river under the WSRA, and thus

the challenged state law maintains what was there before the

designation and allows for the reconstruction of certain

preexisting bridges.

On February 1, 2007, FitzGerald filed a federal suit

against Harris, the state official charged with managing the AWW,

alleging that Me. Rev. Stat. Ann. tit. 12, § 1882, as amended in

2006, is preempted by the WSRA. Specifically, FitzGerald contended

that the Maine statute would "degrade the value which caused the

AWW to be included in the National Wild and Scenic Rivers System"

and "erode[] the AWW's wild condition," contrary to the mission of

the WSRA. On March 19, 2007, Harris moved to dismiss the case,

arguing that the suit was barred by the Eleventh Amendment, that

the WSRA did not preempt the Maine statute, and that FitzGerald's

requested injunctive relief was not a permissible remedy under the

Supremacy Clause.

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 On August 20, 2007, a magistrate judge recommended that

the case be dismissed under Fed. R. Civ. P. 12(b)(6) because the

Maine statute was not preempted by the WSRA. On February 11, 2008,

the district court affirmed the magistrate judge's recommended

decision and granted Harris's motion to dismiss. FitzGerald timely

appealed.

II.

We review de novo the district court's dismissal under

Fed. R. Civ. P. 12(b)(6). Thomas v. Rhode Island, 542 F.3d 944,

948 (1st Cir. 2008). We assume the truth of all well-pleaded facts

in the complaint, drawing all reasonable inferences in the

plaintiffs' favor. Id. To survive a motion to dismiss, the

complaint must allege "a plausible entitlement to relief." Bell

Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1967 (2007); see also N.J.

Carpenters Pension & Annuity Funds v. Biogen Idec Inc., 537 F.3d

35, 44 (1st Cir. 2008). The preemption issues raised are ones of

law, not of fact, and are amenable to resolution by a motion to

dismiss the complaint.1 Plaintiffs have shown no plausible

entitlement to relief.

1
We bypass the questions regarding whether a cause of
action for preemption is available to these plaintiffs and of the
limits imposed on the remedial power of the federal courts by the
Eleventh Amendment. Instead, we engage in a merits-based analysis,
which avoids any potential constitutional issues. Parella v. Ret.
Bd. of the R.I. Employees' Ret. Sys., 173 F.3d 46, 53-57 (1st Cir.
1999).

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 Under the Supremacy Clause, "the Laws of the United

States . . . shall be the supreme Law of the Land; and the Judges

in every State shall be bound thereby, any Thing in the

Constitution or Laws of any State to the Contrary notwithstanding."

U.S. Const. art. VI, cl. 2. State law may be preempted by federal

law in three ways.2 First, Congress can include "language in the

federal statute that reveals an explicit congressional intent to

pre-empt state law." Barnett Bank of Marion County, N.A. v.

Nelson, 517 U.S. 25, 31 (1996). The Maine statute challenged here,

Me. Rev. Stat. Ann. tit. 12, § 1882, is not preempted expressly by

the WSRA. Nothing in the text of the federal statute expressly

preempts state law regulation of rivers administered under section

2(a)(ii) of the WSRA, and FitzGerald agrees that there is no

express preemption.

Second, Congress may implicitly preempt state law by

"creat[ing] a scheme of federal regulation 'so pervasive as to make

reasonable the inference that Congress left no room for the States

to supplement it.'" Id. (quoting Rice v. Santa Fe Elevator Corp.,

331 U.S. 218, 230 (1947)). This form of implied preemption is

2
The jurisdictional doctrine of "complete preemption" has
no application here. "Complete preemption is a short-hand for the
doctrine that in certain matters Congress so strongly intended an
exclusive federal cause of action that what a plaintiff calls a
state law claim is to be recharacterized as a federal claim."
Fayard v. Ne. Vehicle Servs., LLC, 533 F.3d 42, 45 (1st Cir. 2008)
(emphasis in original); see also Beneficial Nat'l Bank v. Anderson,
539 U.S. 1, 8 (2003).

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often called "field preemption." SPGGC, LLC v. Ayotte, 488 F.3d

525, 530 (1st Cir. 2007). There is no field preemption here --

FitzGerald admits that the states play a significant role in the

management of section 2(a)(ii) rivers.

FitzGerald instead relies upon the third category of

preemption, "conflict preemption." Under that theory, "state law

is . . . pre-empted to the extent it actually conflicts with

federal law, that is, when compliance with both state and federal

law is impossible, or when the state law stands as an obstacle to

the accomplishment and execution of the full purposes and

objectives of Congress." Good v. Altria Group, Inc., 501 F.3d 29,

47 (1st Cir. 2007) (quoting California v. ARC Am. Corp., 490 U.S.

93, 100-01 (1989)). Conflict preemption is particularly difficult

to show when "the most that can be said about the state law is that

the direction in which state law pushes [behavior] is in general

tension with broad or abstract goals that may be attributed

to . . . federal laws." L.H. Tribe, American Constitutional Law

§ 6-26, at 487 (2d ed. 1988); see also Pac. Gas & Elec. Co. v.

State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 222-23

(1983); Commonwealth Edison Co. v. Montana, 453 U.S. 609, 634

(1981) (recognizing that "general expressions of 'national policy'"

in a federal statute were insufficient to preempt state law).

FitzGerald asserts that there are two types of conflicts:

first, he contends that the state statute generally stands as an

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obstacle to accomplishing the purposes of the federal statute;

second, he argues that it is impossible to comply with both the

Maine statute and the language of 16 U.S.C. § 1273(b)(1) that

"wild" rivers are to be "generally inaccessible except by trail."3

He argues that the state law's requirement that there be eleven

seasonal motor vehicle access points and six permanent bridges

violates both the federal statute and the expressed intent of the

1970 federal approval of the AWW under the WSRA that the state

authorize only temporary bridges for short-term logging purposes

and that there be only two points of overland public access,

located at either end of the AWW.

A. Preemption by the WSRA

FitzGerald's broader preemption argument rests on the

policy embodied by the WSRA in 16 U.S.C. § 1271

that certain selected rivers of the Nation
which, with their immediate environments,
possess outstandingly remarkable scenic,
recreational, geologic, fish and wildlife,
historic, cultural, or other similar values,
shall be preserved in free-flowing condition,
and that they and their immediate environments
shall be protected for the benefit and
enjoyment of present and future generations.

3
The access points described in Me. Rev. Stat. Ann. tit.
12, § 1882(1) allow vehicles to drive up to the edge of the
watercourse. The access points in § 1882(2) to the short trails
leading to the AWW permit vehicles within the following distances
of the watercourse: 100 feet at Bissonette Bridge; 40 feet at
Ramsey Ledge Campsite; 20 feet at Finley Bogan; and 10 feet at
John's Bridge. Vehicles may also drive up to the water's edge at
Indian Stream.

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FitzGerald asserts that "the outstandingly remarkable value for the

AWW is that it provides a wild condition for a wilderness canoe

experience." He contends that the Maine statute threatens the

wilderness condition of the AWW by permitting motor vehicle traffic

close to the AWW and by installing six permanent bridges over the

watercourse. Specifically, this level of accessibility, FitzGerald

argues, is contrary to the WSRA's definition of a "wild" river

area, which the statute specifies is one that is "generally

inaccessible except by trail." Id. § 1273(b)(1).

Further, FitzGerald claims that the management plan

embodied in Me. Rev. Stat. Ann. tit. 12, § 1882 is contrary to the

state's duty under the WSRA "to protect and enhance" the special

characteristics of the AWW that caused it to be included within the

system of protected rivers. 16 U.S.C. § 1281(a) ("Each component

of the national wild and scenic rivers system shall be administered

in such manner as to protect and enhance the values which caused it

to be included in said system without, insofar as is consistent

therewith, limiting other uses that do not substantially interfere

with public use and enjoyment of these values."). He argues that

Maine's obligation "to protect and enhance" the wilderness

character of the AWW is perpetual because the WSRA charges the

states with "permanently" administering section 2(a)(ii) rivers as

wild and scenic rivers. Id. § 1273(a)(ii).

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 These three arguments, based on FitzGerald's reading of

the policy set forth in § 1271, on the management obligations in

§ 1281(a), and on the "permanently" language in § 1273(a)(ii), do

not establish preemption. FitzGerald reads these phrases in

isolation from the specific command in the text that the

administration of section 2(a)(ii) rivers is to be "by an agency or

political subdivision of the State or States concerned." Id.

§ 1273(a)(ii) (emphasis added). The WSRA does not mandate that

states adopt management plans for section 2(a)(ii) rivers which

meet any specific standard. Instead, the statute embraces

flexibility as to management plans, recognizing that "[m]anagement

plans for any such component may establish varying degrees of

intensity for its protection and development, based on the special

attributes of the area." Id. § 1281(a).

FitzGerald attempts to buttress his reading of the term

"permanently" by pointing to Department of the Interior guidelines,

which use the term "must":

The values which cause the river to be
qualified for the National System must be
assured of permanent protection and management
by or pursuant to State statute. . . . [T]he
State must adopt a program of action which
will provide permanent protection for the
natural and cultural qualities of the river
and adjoining lands.

45 Fed. Reg. 63,148, 63,149 (Sept. 23, 1980). But earlier

departmental guidelines permit the reclassification or withdrawal

of section 2(a)(ii) rivers. See U.S. Dep'ts of the Interior &

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Agric., Guidelines for Evaluating Wild, Scenic and Recreational

River Areas Proposed for Inclusion in the National Wild and Scenic

Rivers System Under Section 2, Public Law 90-542 6 (1970). Thus,

the rivers are not necessarily a permanent part of the system.

Maine is obligated to administer the AWW "in such manner

as to protect and enhance the values which caused it to be

included" in the system of protected rivers. Id. But the statute

leaves the determination of how best to administer the AWW to meet

those objectives to Maine. There is at most a disagreement between

FitzGerald and the state regarding how best to administer the AWW

to meet those ends. That sort of disagreement does not give rise

to a viable claim of preemption.

The cases that FitzGerald cites as supporting his

preemption argument all involve claims that federal authorities are

violating the WSRA in the management of federally-administered

rivers. See, e.g., Wilderness Watch v. U.S. Forest Serv., 143 F.

Supp. 2d 1186 (D. Mont. 2000); Or. Natural Desert Ass'n v.

Singleton, 75 F. Supp. 2d 1139 (D. Or. 1999). Those cases involve

challenges to permits issued by federal agencies allowing certain

usages of land along federally-administered rivers and are reviewed

under the Administrative Procedure Act ("APA"). See, e.g.,

Wilderness Watch, 143 F. Supp. 2d at 1203. FitzGerald argues that

this caselaw must be applied to state-administered rivers if the

WSRA is to have any meaning, otherwise section 2(a)(ii) rivers will

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receive a lesser level of protection.4 But that argument would

require us to ignore the clear text of the federal statute and its

recognition of state authority over state-administered wild rivers.

See 16 U.S.C. § 1273(a)(ii).

Further, the WSRA defines a limited role for the federal

government, a role primarily of cooperation with and assistance to

the states in the management of section 2(a)(ii) rivers. See id.

§ 1281(e) ("The States and their political subdivisions shall be

encouraged to cooperate [with federal agencies] in the planning and

administration of components of the system which include or adjoin

State- or county-owned lands."); id. § 1283 ("The Secretary of the

Interior, the Secretary of Agriculture, . . . or other department

or agency head shall, where appropriate, enter into written

cooperative agreements with the appropriate State or local official

for the planning, administration, and management of Federal lands

which are within the boundaries of any rivers for which approval

has been granted under section 1273(a)(ii) of this title."); cf.

id. § 1282(a) ("The Secretary of the Interior shall encourage and

assist the States to consider . . . needs and opportunities for

4
State administration does not necessarily make section
2(a)(ii) rivers any less protected than federally-administered
rivers. States have a strong incentive to manage their rivers in
a manner consistent with their designation because, as discussed
above, poor stewardship of a state-administered river could cause
a state to lose its benefits of protection, assistance, and funding
under the WSRA. Further, FitzGerald is free to take his claims to
the political branches of the state government in Maine and argue
for greater protection for the AWW.

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establishing State and local wild, scenic and recreational river

areas.").

The WSRA does address preemption, but in ways distinctly

unhelpful to FitzGerald. Specific provisions of the WSRA limit any

federal displacement of a state's authority over its section

2(a)(ii) rivers. Even on federally-administered rivers (unless

within a national park or monument), state jurisdiction over

hunting and fishing laws is unaffected by the WSRA. Id. § 1284(a).

With respect to state water rights, the WSRA is neither a claim nor

denial on the part of the federal government of state jurisdiction

over the waters of any included river. Id. § 1284(d). Moreover,

the WSRA expressly disclaims preemption of a state's right to

access the beds of component rivers. Id. § 1284(f). And the WSRA

specifically prohibits federal condemnation of state-owned lands.

Id. § 1277(a)(1). The WSRA's overarching respect for a state's

authority over its own designated rivers refutes FitzGerald's claim

of conflict preemption.

B. Preemption by Federal Agency Action

FitzGerald falls back on the proposition that the Maine

statute is nonetheless preempted by federal agency action, even if

not by the statute. See Geier v. Am. Honda Motor Co., 529 U.S. 861

(2000). The proposition that federal agency action, taken pursuant

to its interpretation of a statute, may itself preempt is quite

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correct. But a review of the interpretation of the WSRA by the

relevant agencies further undercuts FitzGerald's preemption claim.

FitzGerald relies on correspondence from the National

Park Service ("NPS") to the Army Corps of Engineers ("ACE")

regarding Maine's request for permits from the ACE relating to the

replacement of the Henderson Brook Bridge, one of the six bridges

mentioned in Me. Rev. Stat. Ann. tit. 12, § 1882(4). We will

assume, in FitzGerald's favor, that such correspondence can be

pertinent federal regulatory action. In a letter dated June 29,

2007, Chysandra Walter, NPS Acting Northeast Regional Director,

stated:

[T]he State's 1970 application for federal
designation, as well as the applicable state
statutes upon which that application and
today's management are based, highlight the
affirmative responsibility of the State to
manage the Allagash Wilderness Waterway for
wilderness recreational opportunities, and to
affirmatively develop "maximum wilderness
character."
. . . .
The State of Maine . . . is responsible
for managing and administering the Allagash
Wilderness Waterway in a manner consistent
with the Wild and Scenic Rivers Act. In
addition to issues associated with Section 7
(federally assisted water resource development
projects) and Section 2 (classification) that
have been noted above, all administering
agencies have the responsibility to further
the purposes of the Act as articulated in
Section 1 (purposes) and Section 10
(management direction).

Later, NPS Northeast Regional Director Dennis R.

Reidenbach wrote in a letter dated November 15, 2007:

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 As a river designated as a component of
the National Wild and Scenic Rivers System
under Section 2(a)(ii) of the Act (16 U.S.C.
§ 1273(a)(ii)), the State of Maine is
responsible for administering the Allagash
Wilderness Waterway in "such manner as to
protect and enhance the values which cause it
to be included in [the System]" pursuant to
Section 10 of the Act (16 U.S.C. § 1281(a)).

FitzGerald argues that these statements from the NPS form

an independent basis for preemption. But these statements provide

no stronger basis for preemption than the text of the WSRA itself.

The sections of the NPS letters upon which FitzGerald relies do

little more than recite the text and structure of the WSRA.

Indeed, the record of federal regulatory action under the

WSRA undercuts FitzGerald's preemption argument. Even before the

issue of the permit for the Henderson Brook Bridge arose, the

guidelines issued by the Departments of the Interior and

Agriculture recognized that the management policies for rivers

under the WSRA may vary depending upon whether the river is state-

or federally-administered. See 47 Fed. Reg. 39,454, 39,459 (Sept.

7, 1982) ("Managing agencies will implement [the principles from

section 10(a) of the WSRA] to the fullest extent possible under

their general statutory authorities and existing Federal, State and

local laws. Because of these limitations, however, implementation

of the principles may differ among and within components of the

system depending on whether the land areas involved are federally,

State, locally or privately owned.").

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 Reports from the Interagency Wild and Scenic Rivers

Coordinating Council also recognize that the WSRA is deferential to

the states regarding the management of section 2(a)(ii) rivers.

See, e.g., Interagency Wild & Scenic Rivers Coordinating Council,

Protecting Resource Values on Non-Federal Lands 4 (1996), available

at http://www.rivers.gov/publications/non-federal-lands-

protection.pdf ("[T]here are no explicit standards for resource

protection on non-federal lands in the [WSRA] or Interagency

Guidelines."); Interagency Wild & Scenic Rivers Coordinating

Council, A Compendium of Questions and Answers Relating to Wild and

Scenic Rivers 42 (1997), available at

http://www.rivers.gov/publications/q-a.pdf ("Although the [WSRA]

includes provisions encouraging the protection of river values

through state and local government land use planning, there are no

binding provisions on local governments.").

Moreover, as to the AWW itself, the federal regulatory

action regarding the ACE permit for the Henderson Brook Bridge

contradicts FitzGerald's claim of preemption. Indeed, Reidenbach's

November 15, 2007 letter, on which FitzGerald relies, went on to

say: "The State of Maine is responsible for deciding how to best

administer the Allagash Wilderness Waterway to protect and enhance

the values which caused it to be designated under Section 10 of the

Act." He determined that "[b]ecause the bridge existed at the time

of the Waterway's classification as 'wild,' we conclude that

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replacing the bridge as proposed by the Bureau will not degrade the

Waterway's 'wild' character as compared to the condition at the

time of designation (and existing presently)," noting that the WSRA

"does not require that a water resources project enhance the

wilderness character of a wild river area."

Additionally, on October 9, 2007, the ACE issued a permit

to Maine for the work relating to the Henderson Brook Bridge

without noting any objections from any of the federal agencies

concerned.5 Because both the NPS and the ACE approved Maine's

plans for the Henderson Brook Bridge, it cannot be said that the

Maine statute authorizing the permanent bridges over the AWW is

preempted by federal agency action.

III.

The judgment of dismissal is affirmed.

5
FitzGerald could have challenged the ACE permit under the
APA but did not.

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