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.

Recognizing a potential legal problem, federal and state 1

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, nondiscretionary 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 multipart 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

We also reject Scarborough Citizens' reliance on section 2

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, but no 3

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

Compare Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1397 3

(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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