United States Court of Appeals
For the First Circuit
No. 11-1597
SCARBOROUGH CITIZENS PROTECTING RESOURCES;
DAVID T. PAUL, PAUL AUSTIN, SUSAN DeWITT WILDER,
Plaintiffs, Appellants,
v.
U.S. FISH AND WILDLIFE SERVICE; MARVIN MORIARTY,
Northeast Regional Director, U.S. Fish and Wildlife Service;
PAUL LePAGE, Governor, State of Maine; CHANDLER WOODCOCK,
Commissioner, Maine Department of Inland Fisheries and Wildlife;
and PATRICIA AHO, Commissioner,
Maine Department of Environmental Protection,*
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin, Selya and Stahl,
Circuit Judges.
Stephen F. Hinchman with whom Law Offices of Stephen F.
Hinchman, LLC was on brief for appellants.
Evan J. Roth, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief for
the federal defendants, appellees.
*
Pursuant to Fed. R. App. P. 43(c)(2), Paul LePage, Chandler
Woodcock, and Patricia Aho have been substituted for John E.
Baldacci, Roland Martin and David P. Littell, as Governor, State of
Maine; Commissioner, Maine Department of Inland Fisheries and
Wildlife; and Commissioner, Maine Department of Environmental
Protection.
Paul Stern, Deputy Attorney General, with whom Gerald D. Reid
and Mark Randlett, Assistant Attorneys General, Office of the
Attorney General, were on brief for the state defendants,
appellees.
March 22, 2012
BOUDIN, Circuit Judge. This litigation concerns a
segment of the Eastern Trail in Scarborough, Maine. The Eastern
Trail is a public recreational trail which is part of a network of
trails running along the Eastern Seaboard.
http://www.easterntrail.org. The portion of the Trail at issue in
this case is over three miles long, runs through a 32-acre tract of
land owned by the state of Maine, and is used in part for
recreation and to access the state-managed Scarborough Marsh
Wildlife Management Area.
An association and several individuals who regularly use
the Trail for recreating and hunting, and who support wildlife
conservation ("Scarborough Citizens") brought suit against the
United States Fish and Wildlife Service ("USFWS") and its Northeast
Regional Director, as well as the Governor of Maine and the
Commissioners of the Maine Department of Inland Fisheries and
Wildlife ("IFW") and Department of Environmental Protection
("DEP"). Scarborough Citizens alleged that easements conveyed by
the state on the parcel of land violate the law.
As alleged in the complaint, in 1961 Maine purchased the
tract of land (formerly owned by a railroad and apparently
consisting predominately of the Trail itself) exclusively using
federal funds granted to the state under the Pittman-Robertson
Wildlife Restoration Act, also known as the Federal Aid in Wildlife
Restoration Act ("Wildlife Restoration Act"), 16 U.S.C. §§ 669-669k
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(2006). Funds are granted under the Wildlife Restoration Act only
for approved purposes or projects, id. § 669e; the approved purpose
for this land was "waterfowl habitat, waterfowl management, and
access to waterfowl hunting."
Beginning in 1962 and continuing through 2005, the state
and IFW conveyed various easements on portions of the Trail to the
Town of Scarborough, primarily for sanitary pipelines and a town
way, as well as to private parties for access to adjoining
property. In consequence, the very eastern-most portion of the
Trail has become a town road. The bulk of the rest of the Trail is
graveled and, pursuant to a 2003 agreement between the Town of
Scarborough and IFW, limited to pedestrian and non-motorized
vehicle access, save for limited vehicle access for hunting and
trapping in October and December.
However, an easement granted by IFW in 2005 and a
subsequent permit granted by DEP allowed construction of a road
over 766 feet of previously-restricted trail to give vehicular
access to a new planned subdivision. In 2008, IFW realized that
the property was likely purchased with Wildlife Restoration Act
funds and reported that discovery to USFWS. Scarborough Citizens
learned of the funding source in 2009 only after filing a request
under Maine's Freedom of Access Act with IFW. In its view, the
grant of easements--and in particular the construction of a paved,
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general-use town road--on any portion of the 1961 purchase violated
federal restrictions.1
In 2010, Scarborough Citizens filed a suit for injunctive
and declaratory relief, alleging violations of the Wildlife
Restoration Act, the National Environmental Policy Act, ("NEPA"),
42 U.S.C. § 4321 et seq. (2006), and state law. Following the
magistrate judge's recommendation, Scarborough Citizens Protecting
Res. v. U.S. Fish & Wildlife Serv., No. 2:10-cv-00315-DBH, 2011 WL
722411 (D. Me. Feb. 22, 2011), the district court dismissed the
federal claims on the merits and declined to exercise supplemental
jurisdiction over the state law claims, No. 10-315-P-H, 2011 WL
1131539 (D. Me. Mar. 28, 2011).
In its appeal, Scarborough Citizens argues that the state
agency has repeatedly violated the Wildlife Restoration Act and
federal regulations in varying respects by conveying nearly ten
easements on various portions of the Eastern Trail between 1968 and
2005. The gist of the claim is that these conveyances resulted in
uses of the land, initially purchased with funds from the Wildlife
Restoration Act, contrary to the purposes for which it was
initially acquired.
1
Recognizing a potential legal problem, federal and state
officials entered into negotiations apparently aimed at a repayment
to the federal government; we are told that "IFW continues to work
to resolve the outstanding issues," and the federal officials'
brief cites a draft memorandum of understanding.
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The Wildlife Restoration Act, enacted in 1937, authorizes
the Secretary of the Interior to disburse money derived from excise
taxes on hunting equipment to states for "wildlife-restoration
projects." 16 U.S.C. § 669. Funded projects must be approved by
the Secretary and conform to standards fixed by him or her, id.,
and the apportioned funds must be expended only for the project,
id. §§ 669e(a), 669k(d)(1). The state is also obliged to maintain
completed wildlife-restoration projects. Id. § 669g.
The statute lacks a private right of action, e.g., Ill.
State Rifle Ass'n v. Illinois, 717 F. Supp. 634, 638 (N.D. Ill.
1989), but most courts, including the district court here, have
allowed plaintiffs to challenge federal agency action--including
any such action allegedly violating the Wildlife Restoration Act--
under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706
(2006). See, e.g., Sportsmen's Wildlife Def. Fund v. Romer, 29 F.
Supp. 2d 1199, 1211 (D. Colo. 1998). However, under Norton v.
Southern Utah Wilderness Alliance, 542 U.S. 55, 64 (2004), in an
APA challenge to federal agency inaction it must be shown that
USFWS "failed to take a discrete agency action that it is required
to take."
We start by asking whether the Wildlife Restoration Act
provision cited by Scarborough Citizens imposes a discrete, non-
discretionary duty to act on the federal officials. USFWS argues
that the claims have been waived; but the district court decided
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them on the merits and we will treat them as preserved even though
only sketchily raised in the complaint. By contrast, the claims
initially brought against state officials under the Wildlife
Restoration Act were withdrawn voluntarily in the district court
and cannot be revived on appeal.
The key statutory provision relied upon reads:
(a) Setting aside funds
Any State desiring to avail itself of the
benefits of this chapter shall, by its State
fish and game department, submit programs or
projects for wildlife restoration . . .
(2) The Secretary of the Interior shall
approve only such comprehensive plans or
projects as may be substantial in character
and design and the expenditure of funds hereby
authorized shall be applied only to such
approved comprehensive wildlife plans or
projects and if otherwise applied they shall
be replaced by the State before it may
participate in any further apportionment under
this chapter. No payment of any money
apportioned under this chapter shall be made
on any comprehensive wildlife plan or project
until an agreement to participate therein
shall have been submitted to and approved by
the Secretary of the Interior.
16 U.S.C. § 669e(a).
Scarborough Citizens focuses on the statutory requirement
that if authorized funds are "otherwise applied," "they shall be
replaced by the State before it may participate in any further
apportionment"; a regulation, 50 C.F.R. § 80.14(a) (2010), says the
same thing. But here the funds were "applied"--and properly so--to
acquire the Trail. Neither the statute nor the echoing regulation
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just cited addresses the issue of the subsequent misuse or disposal
of property once acquired; but the regulations do so in the multi-
part section 80.14(b) and it is to those provisions that we now
turn.
Regulations can, by themselves, not only impose
liabilities on non-federal parties but also impose legal duties on
federal officers such that their inaction is subject to judicial
review under the APA. However, "[t]he limitation to required
agency action rules out judicial direction of even discrete agency
action that is not demanded by law (which includes, of course,
agency regulations that have the force of law)." Norton, 542 U.S.
at 65; accord Veterans for Common Sense v. Shinseki, 644 F.3d 845,
869 (9th Cir. 2011); Benzman v. Whitman, 523 F.3d 119, 130 (2d Cir.
2008).
The pertinent regulations provide:
§ 80.14 Application of Wildlife and Sport Fish
Restoration Program funds.
(a) States must apply Wildlife and Sport Fish
Restoration Program funds only to activities
or purposes approved by the Regional Director.
If otherwise applied, such funds must be
replaced or the State becomes ineligible to
participate.
(b) Real property acquired or constructed with
Wildlife and Sport Fish Restoration Program
funds must continue to serve the purpose for
which acquired or constructed.
(1) When such property passes from management
control of the State fish and wildlife agency,
the control must be fully restored to the
State fish and wildlife agency or the real
property must be replaced using non-Federal
funds not derived from license revenues.
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Replacement property must be of equal value at
current market prices and with equal benefits
as the original property. The State may have
up to 3 years from the date of notification by
the Regional Director to acquire replacement
property before becoming ineligible.
(2) When such property is used for purposes
that interfere with the accomplishment of
approved purposes, the violating activities
must cease and any adverse effects resulting
must be remedied.
(3) When such property is no longer needed or
useful for its original purpose, and with
prior approval of the Regional Director, the
property must be used or disposed of as
provided by 43 CFR 12.71 or 43 CFR 12.932.
50 C.F.R. § 80.14 (2010).
Referring to the grant of easements, Scarborough
Citizens' complaint alleged violations of each of the three
provisions in section 80.14(b) reproduced above--loss of management
control (section 80.14(b)(1)), misuse (section 80.14(b)(2)), and
disposal (section 80.14(b)(3)). While actions of state officers
are not subject to APA review, Karst Envtl. Educ. & Prot., Inc. v.
EPA, 475 F.3d 1291, 1298 (D.C. Cir. 2007), Scarborough Citizens
argues the regulations confer two non-discretionary duties on USFWS
itself. Specifically, it says USFWS must notify Maine that the
state must remedy the alleged violation, and USFWS must also bar
Maine from further apportionments of Wildlife Restoration Act
funds.
Section 80.14(b)(1) refers to a potential "notification
by the [USFWS] Regional Director," but it does not say that USFWS
is required to make such a notification, so no APA mandatory duty
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exists under Norton. Cf. Gardner v. U.S. Bureau of Land Mgmt., 638
F.3d 1217, 1224 (9th Cir. 2011). And it indeed refers to state
ineligibility for apportionments under the program if management
control is lost over funded property; but while it "sets out
actions a state must take in order to cure a misuse of federal aid
monies," it is "silent . . . with respect to the actions the USFWS
may or must take in response to the misuse." Sportsmen's Wildlife
Def. Fund, 29 F. Supp. 2d at 1212.2
This reading of the regulations falls within the normal
contours of judicial review of agency actions. Cutting off funding
in response to a violation smacks of a decision whether or not to
seek enforcement, which carries a presumption of non-reviewability.
Heckler v. Chaney, 470 U.S. 821, 831 (1985). As the Supreme Court
has "repeated time and again, an agency has broad discretion to
choose how best to marshal its limited resources and personnel to
carry out its delegated responsibilities." Massachusetts v. EPA,
549 U.S. 497, 527 (2007).
After the district court's decision in this case, the
Wildlife Restoration Act regulations were amended and re-organized
in 2011. The new regulations say that when the state "allows a use
2
We also reject Scarborough Citizens' reliance on section
80.14(b)(3), the disposal provision. None of the easements here
was a "disposal" of the property as the regulations use the term--a
label for what happens to property only after the formalized
process described in the regulations, to which both the state and
federal agencies explicitly agree, occurs.
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of real property that interferes with its authorized purpose under
a grant," USFWS "may declare the agency ineligible to receive new
grants." 50 C.F.R. § 80.135(f) (2011) (emphasis added). This
amended language accords with our conclusion that a funds cut-off,
provoked by a breach of the regulatory provisions at issue, is a
discretionary enforcement decision.
Scarborough Citizens also challenges under the National
Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. (2006),
the state's conveyance of the 2005 easement to a private developer
to construct a street on 766 feet of the Eastern Trail to allow
pedestrian and vehicle access to a subdivision. They allege this
conveyance "encumbered" the Eastern Trail and required NEPA
compliance by both the federal and state officials.
NEPA establishes a now familiar assessment process that
officials must follow before undertaking a "major Federal action[]
significantly affecting the quality of the human environment." Id.
§ 4332(C). Like the Wildlife Restoration Act, NEPA does not by its
terms create a private right of action; but, as with the former
statute, federal agency action covered by NEPA is reviewable under
the APA. E.g., Theodore Roosevelt Conservation P'ship v. Salazar,
661 F.3d 66, 72 (D.C. Cir. 2011).
Scarborough Citizens framed its claim under NEPA in the
district court as follows:
In conveying the 2005 easement to [the private
developer], which required federal approval,
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State and Federal Defendants violated [NEPA]
by encumbering the Eastern Trail without first
taking a hard look at whether the conveyance
will significantly affect the quality of the
human environment.
The difficulty, of course, is that the federal officials did not
convey the easement, and while a grant of federal approval might
perhaps have required an environmental assessment under NEPA under
certain circumstances, no such approval was sought by the state
officials or granted by the federal ones.
Plaintiffs offer two main theories for applying NEPA to
a case in which the challenged action--namely, the conveyance of an
easement to use or cross a portion of the state-owned Trail--was
taken by the state. The first theory is that "inaction" by federal
officials can in some cases violate NEPA, that the state's conveyor
should have requested federal approval and therefore that NEPA was
violated by federal officials. The "therefore" constitutes the
familiar lawyer's non-sequitur.
Although deliberate inaction might in some cases be
subject to NEPA, 40 C.F.R. § 1508.18 (2011); Mayaguezanos por la
Salud y el Ambiente v. United States, 198 F.3d 297, 301 (1st Cir.
1999), it is unclear that the grant of the easement required
federal "approval" at all. The only relevant regulatory provision
mentioning federal approval is that governing disposal, but the
Trail segment in question was or will be paved--not sold or
otherwise relinquished--and the disposal regulation is not
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applicable here. See note 2, above. In any event, as federal
officials were apparently not advised of the grant, failing to
object can hardly be treated as a surrogate for approval given
without complying with NEPA.
Alternatively, if the grant of the easement independently
violated section 80.14 of the regulations and permitted remedial
action by USFWS, the failure to seek remedies would be reviewable
under NEPA only where there is an enforceable duty to act, 40
C.F.R. § 1508.18, and as already explained, no duty exists under
the Wildlife Restoration Act regulations. See also Ramsey v.
Kantor, 96 F.3d 434, 445 (9th Cir. 1996); State of N.J., Dep't of
Envtl. Prot. & Energy v. Long Island Power Auth., 30 F.3d 403, 418
(3d Cir. 1994).
NEPA cannot be used to make indirectly reviewable a
discretionary decision not to take an enforcement action where the
decision itself is not reviewable under the APA or the substantive
statute. "No agency could meet its NEPA obligations if it had to
prepare an environmental impact statement every time the agency had
power to act but did not do so." Defenders of Wildlife v. Andrus,
627 F.2d 1238, 1246 (D.C. Cir. 1980); accord Greater Yellowstone
Coal. v. Tidwell, 572 F.3d 1115, 1123 (10th Cir. 2009).
Plaintiffs' second route to identify a major federal
action is their claim that a "partnership" existed between the
federal and state governments which transformed the state agency's
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conveyance of an easement in real property owned by the state into
a federal action. Such partnerships may exist in certain
circumstances where the federal government funds a joint or state
initiative or where federal and state components of a project are
interdependent or where federal approval is given without NEPA
compliance. 40 C.F.R. § 1508.18 (2011); Mayaguezanos, 198 F.3d at
301-02. The circuit decisions are not all in accord,3 but no
indicia of the requisite partnership are present here.
In this instance, the federal government funded the
state's purchase of the property, but it neither funded nor
approved the later grant of any of the easements. USFWS may have
the power to withhold future funding from the state if the easement
violated the regulations and the state does not remedy the
violation, 50 C.F.R. § 80.14 (2010), but (to repeat) this power is
discretionary. As we conclude that there is no reviewable federal
action, neither the federal nor the state officials can be held
liable for violating NEPA, as a major federal action is a
prerequisite for either.
Finally, plaintiffs allege in some detail that the grant
of the 2005 easement violated provisions of state law and say that
the district court had supplemental jurisdiction to resolve those
3
Compare Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1397
(9th Cir. 1992), and Silva v. Romney, 473 F.2d 287, 289-90 (1st
Cir. 1973), with S.C. Wildlife Fed'n v. Limehouse, 549 F.3d 324,
331 (4th Cir. 2008), and Karst, 475 F.3d at 1297-98.
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claims and invalidate the easement. As we agree with the district
court's dismissal of the federal claims in this suit, there is no
abuse of discretion in its decision to decline to exercise
supplemental jurisdiction over the remaining state law claims.
See, e.g., Ramos-Echevarría v. Pichis, Inc., 659 F.3d 182, 190-91
(1st Cir. 2011).
Affirmed.
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