Fitzgerald v. Harris

549 F.3d 46

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.

No. 08-1306.

United States Court of Appeals, First Circuit.

Heard November 5, 2008.

Decided December 5, 2008.

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.

Before LYNCH, Chief Judge, SELYA and BOUDIN, Circuit Judges.

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.

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).

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-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 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 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. 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...