No. 97-1938
In the Supreme Court of the United States
OCTOBER TERM, 1997
GREG D. BIAGI AND LISA BIAGI, PETITIONERS
v.
UNITED STATES FOREST SERVICE
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
LOIS J. SCHIFFER
Assistant Attorney General
M. ALICE THURSTON
SEAN H. DONAHUE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the Forest Service's refusal to allow petitioners to retain a gate
on National Forest lands, which would prevent traffic on a National Forest
System road from approaching within one mile of petitioners' property, is
a federal "action" subject to the requirements of the National
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq.
In the Supreme Court of the United States
OCTOBER TERM, 1997
No. 97-1938
GREG D. BIAGI AND LISA BIAGI, PETITIONERS
v.
UNITED STATES FOREST SERVICE
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
OPINIONS BELOW
The memorandum of the court of appeals (Pet. App. A13-A14) and the opinion
of the district court (Pet. App. A1-A12) are unreported.
JURISDICTION
The judgment of the court of appeals was entered on March 31, 1998. The
petition for a writ of certiorari was filed on June 1, 1998. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. Congress has charged the Forest Service, an agency within the United
States Department of Agriculture (USDA), with managing the National Forest
System, which consists of 191 million acres of federally owned lands. See,
e.g., 16 U.S.C. 1604(e); 58 Fed. Reg. 19,369 (1993). In connection with
those responsibilities, the Forest Service processes applications for special
use authorizations (commonly known as special use permits), which "allow[]
occupancy, use, rights, or privileges of National Forest System land."
36 C.F.R. 251.51.
With exceptions not relevant here, Forest Service regulations provide:
All uses of National Forest System lands, improvements, and resources *
* * are designated "special uses." Before engaging in a special
use, persons or entities must submit an application to an authorized officer
and must obtain a special use authorization[.]
36 C.F.R. 251.50(a). The Forest Service may deny an application for a special
use permit for a variety of reasons, including that "[t]he proposed
use would be inconsistent or incompatible with the purpose(s) for which
the lands are managed, or with other uses," or "would not be in
the public interest." 36 C.F.R. 251.54(i)(1), (2). A special use authorization
terminates "[w]hen, by its terms, a fixed or agreed upon condition,
event, or time occurs," 36 C.F.R. 251.60(a) (2)(iv), or "at the
discretion of the authorized offi- cer for reasons in the public interest."
36 C.F.R. 251.60(b). Upon termination, the permittee is obligated to remove
any improvements and to restore the site to the satisfaction of the Forest
Service. 36 C.F.R. 251.60(j).
Forest Service regulations prohibit any person from: "Constructing,
placing, or maintaining any kind of * * * structure, fence * * * or other
improvement on National Forest System land * * * without a special-use authorization,"
36 C.F.R. 261.10(a); "[p]lacing a vehicle or other object in such a
manner that it is an impediment or hazard to the safety or convenience of
any person," 36 C.F.R. 261.10(f); or "[b]locking, restricting,
or otherwise interfering with the use of a road, trail, or gate," 36
C.F.R. 261.12(d). Violations of those regulations are punishable by fine
or imprisonment. 36 C.F.R. 261.1b. Forest Service officers may impound personal
property placed without authorization on National Forest System lands, 36
C.F.R. 262.12(a), and may remove an "object which is an impediment
or hazard to the safety, convenience, or comfort of other users of an area
of the National Forest System." 36 C.F.R. 262.13.
2. The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321
et seq. (1994 & Supp. II 1996), is a procedural statute intended to
promote environmentally informed decision-making by federal agencies. See,
e.g., Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989);
Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc.,
462 U.S. 87 (1983); Vermont Yankee Nuclear Power Corp. v. Natural Resources
Defense Council, Inc., 435 U.S. 519 (1978). Section 102(2)(C) requires "all
agencies of the Federal Government" to "include in every recommendation
or report on proposals for legislation and other major Federal actions significantly
affecting the quality of the human environment, a detailed statement"
(known as an environmental impact statement (EIS)) addressing, among other
things, "the environmental impact of" and available "alternatives
to" the proposed action. 42 U.S.C. 4332(2)(C) (1994 & Supp. II
1996). The Council on Environmental Quality (CEQ) has promulgated regulations
to assist agencies in implementing NEPA. 40 C.F.R. 1500 et seq. "CEQ's
interpretation of NEPA is entitled to substantial deference." Andrus
v. Sierra Club, 442 U.S. 347, 358 (1979).
3. Petitioners own a ranch located wholly within the boundaries of the Mendocino
National Forest in northern California. The sole access road is Forest Service
Road 20N01E, which winds through the National Forest for about two miles,
past several public campsites, and terminates at petitioners' property line.
See Pet. App. A2; Excerpts of Record (ER) Tab 33, at 69. Forest Service
Road 20N01E itself, and all of the land through which it passes, are federal
property under the administration of the Forest Service. Ibid.
In 1981, Floyd Elliott, the preceding owner of petitioners' ranch, obtained
a special use permit authorizing him to install a gate across Forest Service
Road 20N01E, at a point approximately one mile from his property line, for
the purpose of barring public vehicular access (but not pedestrian and other
forms of public access) to the one-mile segment of the Forest Service road.
Pet. App. A2; ER Tab 33, at 65-73. The special use permit contained conditions
providing that it would expire on December 31, 1992, unless revoked, at
the discretion of the Forest Service, before that date. ER Tab 33, at 65-67.
The permit was "not transfer[]able" and was to terminate "[i]f
the ownership of the property is changed by subdivision[,] sale, transfer,
foreclosure, or any other means." ER Tab 33, at 67.
In 1989, petitioner Greg Biagi purchased the ranch. ER Tab 3, at 3. In June
1990, the Forest Service informed Biagi that the special use permit issued
to Elliott was "not transferable" and that he would need to apply
for a new special use permit to maintain the road segment and keep the gate
in place. ER Tab 33, at 63. On July 28, 1990, Biagi submitted an application
for a special use permit for the continued use of Forest Service Road 20N01E
and retention of the gate. ER Tab 33, at 60-61.
On September 17, 1990, District Ranger Gilbert Easter sent petitioner Greg
Biagi a letter acknowledging receipt of his special use permit application.
ER Tab 33, at 58-59. In April 1994, District Ranger Blaine Baker informed
Biagi that his application for a special use permit appeared to be complete.
ER Tab 33, at 32. On December 27, 1995, Biagi wrote to Congressman Frank
Riggs complaining about not yet having received a special use permit. ER
Tab 33, at 19-21. In response to a resulting inquiry, the Chief of the Forest
Service explained that it had been inappropriate for the agency ever to
have permitted a gate "on national forest land over one mile from the
property boundary," and that "[t]here is no reason or justification
for retaining the gate in its current location." ER Tab 33, at 12.
On March 7, 1996, Carl Tompkins, Acting Director for Lands and Real Estate
Management of the Forest Service's Pacific Southwest Region, informed Greg
Biagi that there was "no resource or legal justification to retain
the gate in the current location" and that "the existing gate
should be removed and relocated on private land at the property boundary
between private and National Forest land." ER Tab 33, at 10. Tompkins
warned that the Forest Service would remove the gate after 90 days if Biagi
did not remove it before then. Ibid. See also ER Tab 33, at 1, 7.
4. Petitioners filed this lawsuit on the eve of the Forest Service's 90-day
deadline for removing the gate. They alleged that the imminent removal of
the gate violated NEPA, CEQ regulations, and the Administrative Procedure
Act (APA), 5 U.S.C. 706, because the agency had not prepared an environmental
assessment (see 40 C.F.R. 1508.9) or an environmental impact statement.
ER Tab 1, at 11-15. On August 14, 1996, the district court entered a preliminary
injunction barring the Forest Service from removing the gate. ER Tab 31,
at 14-15. On August 25, 1997, the district court dissolved the preliminary
injunction and granted the Forest Service's motion for summary judgment.
Pet. App. A1-A12.
The district court concluded that the Forest Service's "refusal to
issue a special use permit to plaintiffs does not constitute major federal
action." Pet. App. A11. It surveyed decisions identifying "major"
federal action and observed that most of the cases involved "actions
much broader in scope than" the Forest Service's decision here to remove
a gate from a "one-mile segment of road" that plaintiffs themselves
"currently use on a regular basis." Id. at A9, A10. The court
held that "the denial of a special use permit by defendant here cannot,
as a matter of law, constitute the type of 'major Federal action' contemplated
by NEPA." Id. at A11. "To so rule," the court reasoned, "would
be to vest entitlements in private individuals occupying national forest
land, and cripple defendant in its ability to manage the nation's forests."
Ibid. Because the district court concluded that the Forest Service's decision
to deny a permit for the gate was not a "major" federal action-a
conclusion sufficient to establish that "NEPA is not implicated"-the
court did not reach the question "whether such action constitutes major
federal action significantly affecting the human environment." Ibid.
In a memorandum decision, the court of appeals affirmed. Pet. App. A13-A14.
The court ruled that "[n]o federal action occurred here to trigger
the requirements of [NEPA]." Id. at A14. The court explained that neither
the expiration of the Elliott special use permit, nor the denial of petitioner's
application for a special use permit, nor "the removal of the unpermitted
gate," was subject to NEPA's requirements. Ibid. It also noted that
"NEPA regulations expressly exclude 'civil or criminal enforcement
actions.'" Ibid. (quoting 40 C.F.R. 1508.18(a)).
ARGUMENT
1. Petitioners contend (Pet. 10-13) that the court of appeals erred in failing
to require the Forest Service to engage in a NEPA analysis before directing
petitioners to remove an unauthorized gate from National Forest System lands.
Petitioners are mistaken. As the court of appeals correctly explained, the
Forest Service's demand that petitioners remove the unpermitted gate is
not an "action" for purposes of Section 102(2)(C) of NEPA, 42
U.S.C. 4332(2)(C) (1994 & Supp. II 1996). The court of appeals' decision
does not conflict with any decision of this Court or another court of appeals.
NEPA applies when an agency undertakes (or authorizes another party to undertake)
some project or activity that may have significant environmental impacts.
See Sierra Club v. Hodel, 848 F. 2d 1068, 1090-1091 (10th Cir. 1988) (agency's
decision to allow road construction on federal lands subject to NEPA); Foundation
for N. Am. Wild Sheep v. USDA, 681 F.2d 1172, 1178 (9th Cir. 1982) (grant
of special use permit to reopen road through sensitive habitat required
preparation of EIS); Puerto Rico Conservation Found. v. Larson, 797 F. Supp.
1066, 1070-1071 (D.P.R. 1992) (federal agencies' decision to reconstruct
and reopen road required EIS); Bunch v. Hodel 642 F. Supp. 363, 365 (W.D.
Tenn. 1985) (federal acquiescence in State's proposed drawdown of water
in lake required EIS).
The NEPA predicate of a federally undertaken, approved, or authorized project
or activity is absent here. The Forest Service authorized petitioners' predecessor,
Floyd Elliott, to install the gate through a special use permit that terminated,
according to its express terms, when petitioners purchased the property
in 1989. Neither the expiration of the Elliott special use permit nor the
Forest Service's refusal to issue a new permit is federal "action"
within the meaning of NEPA. Neither event involves the type of affirmative
federal "action" that Congress sought to subject to environmental
impact analysis. Indeed, petitioners do not cite-and we are unaware of-any
judicial decision holding that an agency's refusal to issue a permit is
federal "action" for purposes of NEPA.
CEQ's regulations reinforce the common sense conclusion that the Forest
Service's denial of an application for a permit is not a "Federal action"
for purposes of NEPA. The CEQ's regulations provide that "[a]ctions"
encompass "new and continuing activities, including projects and programs
entirely or partly financed, assisted, conducted, regulated, or approved
by federal agencies." 40 C.F.R. 1508.18(a) (emphasis added). "Federal
actions" typically consist of the promulgation of "official policy"
through regulations, "[a]doption of formal plans" and "programs,"
as well as the "[a]pproval of specific projects, such as construction
or management activities located in a defined geographic area." 40
C.F.R. 1508.18(b). "Projects include actions approved by permit or
other regulatory decision as well as federal and federally assisted activities."
Ibid. (emphasis added). But a federal agency's rejection of a non-federal
party's request for a permit, or other request for an exemption from general
regulatory prohibitions, is not an "action" for purposes of NEPA.
The Forest Service's contemplated removal of the unauthorized gate (if petitioner
Greg Biagi does not do so first) likewise is not subject to NEPA's environmental
analysis requirements. Forest Service regulations make it unlawful to maintain
any structure on National Forest System lands without a special use permit
and expressly authorize the agency to re- move any such structure. 36 C.F.R.
261.10(a) and (f) 261.12(d), 262.12(a), 262.13. As the court of appeals
correctly noted (Pet. App. A14), the Forest Service's planned removal of
the gate is simply an exercise of the agency's law enforcement authority
under those provisions.
"[J]udicial or administrative civil or criminal enforcement actions"
are not "actions" subject to NEPA. 40 C.F.R. 1508.18(a). A contrary
rule would allow violators to use NEPA as a means of delaying and obstructing
agencies' ability to enforce the law against them. Not surprisingly, few
litigants have raised NEPA objections to law enforcement activities, and
none has done so successfully. See United States v. Glenn-Colusa Irrigation
Dist., 788 F. Supp. 1126, 1135 (E.D. Cal. 1992); Calipatria Land Co. v.
Lujan, 793 F. Supp. 241, 245-246 (S.D. Cal. 1990); United States v. Rainbow
Family, 695 F. Supp. 314, 324 (E.D. Tex. 1988).
2. Petitioners further argue (Pet. 14-16) that this Court should grant certiorari
to address the question whether the term "major" in Section 102(2)(A)
of NEPA, 42 U.S.C. 4332((2)(A) (1994 & Supp. II 1996), operates as an
independent basis on which an agency may decline to prepare an EIS. There
is no reason, however, for this Court to address that question. The district
court ruled that, even if the Forest Service's demand that petitioners remove
the gate is an "action," it is not a "major" action.
Pet. App. A9. The court of appeals, however, did not rely on that rationale,
holding instead that "[n]o federal action occurred here to trigger
the requirements of [NEPA]." Pet. App. A14 (emphasis added). Accordingly,
this case presents no occasion to take up the question of statutory construction
identified by petitioners.
3. Petitioners also contend that the courts of appeals are "split"
concerning the standard of review for an agency's "threshold determination"
as to whether NEPA applies. See Pet. 17 (alleging conflict between North
Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1538 (11th Cir. 1990), and,
inter alia, Northcoast Environmental Center v. Glickman, 136 F.3d 660, 666-667
(9th Cir. 1998)). Petitioners are mistaken with respect to both the existence
and the importance of the purported conflict.
This Court held in Marsh v. Oregon Natural Resources Council, 490 U.S. 360
(1989), that an agency's decision whether to prepare a supplemental environmental
impact statement in response to new environmental information is subject
to judicial review under the APA's "arbitrary and capricious"
standard, 5 U.S.C. 706(2)(A). See 490 U.S. at 376-377. The Court observed
that that question presents a "classic example of a factual dispute
the resolution of which implicates substantial agency expertise." 490
U.S. at 376. Following the rationale of Marsh, the Ninth Circuit and other
courts of appeals have uniformly held that other kinds of factual determinations
under NEPA, such as findings that a proposed action will not have a significant
impact on the environment so that no EIS need be prepared, are subject to
arbitrary and capricious review. See Greenpeace Action v. Franklin, 14 F.3d
1324, 1331 (9th Cir. 1992). See also, e.g., Sierra Club v. U.S. Forest Service,
46 F.3d 835, 840 (8th Cir. 1995); Sabine River Auth. v. U.S. Dep't of Interior,
951 F.2d 669, 678-679 (5th Cir.), cert. denied, 506 U.S. 823 (1992); Sierra
Club v. Lujan, 949 F.2d 362, 367-368 (10th Cir. 1991); North Buckhead Civic
Ass'n v. Skinner, 903 F.2d 1533, 1538 (11th Cir. 1990).
The Eighth and Ninth Circuits have concluded that Marsh's rationale does
not apply, however, to agency determinations on "threshold question[s]
of NEPA applicability." See Northcoast Envtl. Ctr., 136 F.3d at 666-667;
Goos v. ICC, 911 F.2d 1283, 1292 (8th Cir. 1990). Those courts have reasoned
that such "threshold" questions are "primarily legal"
in nature and therefore should be reviewed under a test of "reasonableness."
See Northcoast Envtl. Ctr., 136 F.3d at 666-667; Goos, 911 F.2d at 1292.
The other courts of appeals have not addressed that distinction. For example,
the Eleventh Circuit's decision in North Buckhead, cited by petitioners
(Pet. 17), involved a challenge to the adequacy of an environmental impact
statement, see 903 F.2d at 1538-1545, which presents the type of fact-intensive
issue that the courts have uniformly held comes within the rationale of
Marsh. Indeed, the Ninth Circuit has cited North Buckhead with approval
for the proposition that agency findings of no significant impact under
NEPA are subject to "arbitrary and capricious" review. See Greenpeace
Action, 14 F.3d at 1331. Because the Eleventh Circuit has not addressed
whether the "arbitrary and capricious" standard applies to "threshold"
NEPA determinations, the split of authority asserted by petitioners does
not exist.
The issue also does not appear to have much practical importance. As this
Court observed in Marsh, "the difference between the 'arbitrary and
capricious' and 'reasonableness' standards is not of great pragmatic consequence."
490 U.S. at 377 n.23. See also Sabine River Auth., 951 F.2d at 678 n.2.
Neither the district court nor the court of appeals discussed the issue,
and the choice of the standard of review would not have altered the outcome
in this case. The Ninth Circuit regards its "reasonableness" standard
of review for "threshold" determinations of NEPA applicability
as "less deferential" than the arbitrary or capricious standard,
see Northcoast Entl. Ctr., 136 F.3d at 667. The court of appeals presumably
applied that less deferential standard here and nevertheless upheld the
Forest Service's view that NEPA was inapplicable.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
LOIS J. SCHIFFER
Assistant Attorney General
M. ALICE THURSTON
SEAN H. DONAHUE
Attorneys
AUGUST 1998