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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