927 F.2d 612
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Carol Van Strum, Paul E. Merrell, Plaintiffs-Appellants,
John C. LAWN, et al., Defendants-Appellees.
United States Court of Appeals, Ninth Circuit.
Argued and submitted July 12, 1990.
Decided March 5, 1991.
As Amended April 11, 1991.
Appeal from the United States District Court for the District of Oregon, No. CV-85-6341-E; James A. Redden, District Judge, Presiding.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
Before: FLETCHER, FERGUSON and FERNANDEZ, Circuit Judges.
Appellants Carol Van Strum and Paul Merrell appeal the district court's dismissal of their suit against a number of federal and county officials on motions to dismiss and for summary judgment. Appellants contend that federal officials, acting in concert with officials of Lincoln County, Oregon, subjected appellants' home to frequent and harassing helicopter and fixed-wing overflights in retaliation for appellants' public opposition to the use of herbicides on national forest land. They assert a number of constitutional tort claims, civil rights claims, and a claim under the National Environmental Policy Act (NEPA), 42 U.S.C. Sec. 4321. We affirm in part, reverse in part, and remand to the district court.
Appellants, husband and wife, reside on a parcel of land approximately 28 acres in size, abutting the Siuslaw National Forest in Oregon. The national forest land is managed by the United States Forest Service (USFS). Appellants vigorously oppose the use of herbicides on or near federal lands. They have filed lawsuits challenging the use of herbicides, written books and articles, and lobbied elected officials on the issue.
In the early 1980's, the Drug Enforcement Administration (DEA) implemented a program to eradicate cannabis on federal lands. As part of this program, the DEA, in cooperation with the USFS implemented a surveillance operation to detect the growth of cannabis. Beginning in 1983, Lincoln County entered into agreements to cooperate with these agencies in their surveillance and eradication operations. In accordance with the agreements, Lincoln County provided deputies and an aircraft with a pilot or observer to locate marijuana.
Appellants contend that under the guise of the surveillance program, various employees of the DEA, the USFS, and the county engaged in a conspiracy to harass, to punish, and to deter plaintiffs from their anti-herbicide activity. They state that, beginning in 1982, they have been harassed by aircraft flying dangerously low and, in the case of the helicopters, hovering and circling for extended periods of time. They assert that the unlawful flights have caused their farm animals to stampede, their fruit to fall from their trees, their hens to stop laying, and emotional and psychological harm to them and their children.
In the district court, appellants alleged five claims for relief: (1) deprivations of their first amendment rights under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971); (2) deprivation of their right to privacy in violation of the fourth amendment under Bivens; (3) deprivation of their due process rights in violation of the fifth amendment under Bivens; (4) violations of 42 U.S.C. Sec. 1983; and (5) violations of NEPA, 42 U.S.C. Sec. 4321. They named as defendants two federal employees who actually participated in surveillance operation over the Siuslaw National Forest: USFS Special Agents James D'Amitio, and Bruce Gainer (the "federal operational employees"). In addition, they named a number of present and former administrative employees of the USFS and the DEA: John Lawn, Acting Administrator, DEA; Thomas G. Byrne, Chief, Cannabis Investigations Section, DEA; R. Max Peterson, Chief, USFS; Jeff Sirmon, former Regional Forester for Region VI, USFS; Larry Fellows, former Forest Supervisor of the Siuslaw National Forest (the "federal administrative employees"). Finally, appellants named as defendants both Lincoln County and its Sheriff, Larry Spencer.
II. CONSTITUTIONAL TORT CLAIMS
Appellants contend that the district court improperly dismissed their constitutional tort claims seeking compensation for injuries inflicted by appellees' aerial surveillance programs. Each claim will be discussed in turn.
A. The First Amendment Claim
Appellants argue that the district court erred in granting summary judgment dismissing their claim that appellees have conspired to deprive them of their first amendment rights. They assert that they are being singled out for harassment by helicopter and aircraft flights because of their open opposition to the use of herbicides. They argue that the government knows that they are not marijuana growers and that, despite this knowledge, it is falsely labeling them as marijuana growers in order to justify its harassing surveillance of them.
In support of their claims, appellants proffer statements of various Forest Service personnel and Lincoln County officials to the effect that some of the opposition to herbicides by herbicide protesters comes from disingenuous marijuana growers more concerned about their business than about the environment. They also proffer a statement in the draft Environmental Impact Statement (EIS) prepared by the DEA on cannabis eradication stating that some of the opposition to the use of herbicides comes from marijuana growers. Finally, they assert that an individual heard USFS appellee James Damitio, state that he thought appellants were marijuana growers.
In Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir.1986), cert. denied, 479 U.S. 1054 (1987), this court held that allegations that state agents were engaging in helicopter surveillance with the purpose of retaliating against or chilling the plaintiffs' political activities were sufficient to state a first amendment claim. Here, however, appellants have proffered no evidence demonstrating any connection between the helicopter surveillance and attempts to retaliate against appellants for their political activities. The fact that officials involved in the cannabis eradication program think that some opposition to herbicides is disingenuous does not create an inference that they have been engaged in intentional harassment of appellants because they have exercised their free speech rights. Stretching the inferences to be drawn from the admissible evidence, it, at most, suggests that county and federal officials believed them to be marijuana growers and, consequently, made them a target of overflight activity. This, in itself, is not enough to sustain their claim of a first amendment violation. "[P]laintiffs may not recover merely on the basis of a speculative 'chill' due to generalized and legitimate law enforcement initiatives." Gibson, 781 F.2d at 1338 (citing Laird v. Tatum, 408 U.S. 1 (1972)).
B. The Fourth Amendment Claims
The gravamen of appellants' fourth amendment claims is that their solitude and privacy have been impaired by low overflights of helicopters and fixed-wing planes. They allege flights over their curtilage and over their house in 1982, shortly after filing a previous lawsuit challenging the USFS' use of pesticides, Merrell v. Block, Civ. No. 81-6131 (D.Or.), aff'd in part, rev'd in part sub nom. Save Our Ecosystems Inc. v. Clark, 747 F.2d 1240 (9th Cir.1980). The USFS agreed in a stipulation entered in that suit that it would not fly less than 500 feet overhead in the event that it was necessary to fly over their property. Appellants contend that, despite this stipulation, appellees continue to make harassing flights over their property.
The district court refused to consider claims of harassing overflights that occurred before August 22, 1983, as the court determined that the relevant statute of limitations barred claims that accrued before that date. Further, it dismissed all later claims on summary judgment on the grounds that appellants' allegations failed to establish that the overflights had violated their rights to privacy and that, in the alternative, appellees possessed qualified immunity for any violations of appellants' privacy. An accompanying opinion in this case concludes that the district court erred in its determination of the statute of limitations period, and remands for reconsideration of the pre-August 22, 1983 claims; accordingly, these claims will not be reviewed in this court at this time. We will review, however, the post-August 22, 1983 claims.
Appellants' claims of post-August 22, 1983 overflights suffer, with two exceptions, from the absence of any evidence linking the overflights to the federal appellees. With the exception of two occasions, appellants have been unable to identify any distinguishing characteristics that might link the planes and helicopters to the government. Neither have they produced evidence establishing any other link between federal appellees and the overflights, with the exception of evidence demonstrating that appellees occasionally conducted surveillance flights in the area on the same dates that overflights occurred. Appellants admit, however, that other aircraft, specifically farming and logging aircraft, fly in the vicinity fairly frequently. Consequently, the mere fact that appellees conducted surveillance flights during the periods in question would not allow a reasonable jury to infer that appellees conducted the particular flights complained of.1
On two occasions, however, appellants proffer sufficient evidence to link the federal appellees with two post-August 22, 1985 flights, those occurring on August 14 and August 15, 1985. According to Merrell's deposition testimony, while he was standing on his driveway at the top of the hill near his house on August 14, he saw a helicopter going back and forth directly overhead at an altitude of approximately 100 feet over the place where he was standing. (Merrell deposition at 687-89). That helicopter was later identified as a surveillance helicopter containing both federal and county personnel. Evidence of the August 15, 1985 overflight by the same helicopter is proffered through the affidavit of Van Strum. Van Strum states that on that date the helicopter hovered at an extremely low altitude over a swimming hole located on her property while she and her children were skinny dipping.
While the allegations regarding the August 14, 1985 incident appear to give rise to a valid fourth amendment claim, Van Strum's description of the August 15, 1985 incident does not. Van Strum describes the swimming hole as "a lovely spot with a sandy beach and a broad, slow stretch of the river, completely secluded and shielded from the road by a dense wall of willow, alder, and vines. There ... we can escape the cares of the day ... without fear of intrusion or interruption--even from the telephone." Statement of Carol Van Strum at 15 (Mar. 3, 1986) (CR 34). The special protection provided by the fourth amendment, however, extends only to the home and its "curtilage," the land immediately surrounding and associated with the home. Oliver v. United States, 466 U.S. 170 (1984). An individual may not legitimately demand privacy for activities conducted out of doors except in the curtilage. Id. Here, Van Strum's description indicates that the swimming hole was some distance from the house and its curtilage; thus, fourth amendment protection may not be claimed for that area.
The federal appellees argue that the allegations regarding the August 14, 1985 overflight also fail to state an actionable claim. They contend, first, that the allegations regarding the helicopter's actions, even if true, do not constitute an unlawful search within the meaning of the fourth amendment. In support, appellees cite Florida v. Riley, 488 U.S. 445 (1989), for the proposition that helicopters flown in conformance with FAA restrictions do not violate the fourth amendment. However, in Florida, the Supreme Court expressly based its finding on the fact that "there was no undue noise, and no wind, dust, or threat of injury" associated with the flight. Id. at 452. Here, accepting appellants' allegations as true, quite the contrary occurred.
The federal appellees also contend that even if the August 14, 1985 overflight might otherwise constitute a valid claim, as federal officials, they are protected by qualified immunity. Under the doctrine of Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), the federal appellees are immune if their alleged conduct did not violate a "clearly established statutory or constitutional right of which a reasonable person would have known." Here, if appellants' allegations are taken as true, appellees' operation of a helicopter 100 feet over their house for a period of one-half hour in a manner which could induce fruit to fall, animals to stampede and injure themselves, and considerable psychological trauma on children, clearly constitutes a violation of appellants' fourth amendment rights. While the Supreme Court has found flights over houses not to constitute a fourth amendment violation where far less egregious conduct occurred, for example, where a helicopter circled over property twice at 400' and there were no allegations of undue noise, wind, dust, see Florida v. Riley, 488 U.S. 445 (1989), or where an airplane flew over a house at 1,000 feet while making a physically unobtrusive observation of the property, see California v. Ciraolo, 476 U.S. 207 (1986), the Supreme Court has never declared that the fourth amendment does not prohibit the considerable intrusion asserted by appellants here. Quite the opposite, the Supreme Court has stated that the reasonable expectation of privacy is at the core of fourth amendment values. See, e.g., Florida, 488 U.S. at 451. Here, appellants could reasonably expect that they would not be subjected to helicopters hovering at 100 feet over their curtilage for a half-hour at a time while endangering their children, as well as their crops and their livestock.
The fourth amendment Bivens claim regarding the August 14, 1985 overflight, however, appropriately survives summary judgment only against the two federal operational appellees, James Damitio, and Bruce Gainer, both of whom were directly involved with the flight on that date. The claims against the federal administrative appellees, John Lawn, Thomas Byrne, R. Max Peterson, Jeff Sirmon, and Larry Fellows, rest on little more than the fact that they held administrative positions associated with the cannabis eradication program. Appellants recognize that administrative personnel may not be held vicariously liable for the acts of their subordinates. May v. Enomoto, 633 F.2d 164, 167 (9th Cir.1980). They assert, however, that they proffer enough evidence to hold the administrative appellees directly liable for the harassing searches. However, the mere fact that the administrative appellees allocated funds for cannabis eradication to the Forest Service for use in the Siuslaw National Forest does not support appellants' contentions that these individuals directly targeted them for illegal searches.
Moreover, while appellants assert that direct liability should be found on the basis of the appellees' failure to act after appellants notified them of the illegal searches, except for the August 14, 1985 overflight, no credible evidence existed that federal agents were involved in such illegal overflights. The Supreme Court has stated that, in the case of supervisory liability, the plaintiffs must demonstrate an "affirmative link" between their deprivation and "the adoption of [a] plan or policy by [the supervisors]--express or otherwise--showing their authorization or approval of such misconduct. Rizzo v. Goode, 423 U.S. 362, 370-71 (1976). Such a policy cannot be proved through reference to a single unconstitutional activity unless "proof of the incident includes proof that it was caused by an existing unconstitutional ... policy.... Otherwise the existence of the unconstitutional policy, and its origin, must be separately proved." City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (under Sec. 1983); see also Butz v. Economou, 438 U.S. 478, 500-04 (liability of federal officials under Bivens same as liability of state and municipal officials under Sec. 1983). Here, no such independent evidence of an unconstitutional supervisory policy was offered. Accordingly, the claims against the administrative appellees must be dismissed.
C. The Fifth Amendment Claims
Appellants' fifth amendment claims appear to be two-fold: first, they claim that the defendants, in flying planes without identifying numbers, fraudulently deprived them of a cause of action; and second, that the statements used as evidence of improper motive in the first amendment claim also violated the plaintiffs' property interest in their reputation. With regard to appellants' first contention, they have failed to proffer any evidence that the appellees ever flew planes without identification numbers, let alone that they did so to hide their identity from the plaintiffs. Consequently, the district judge properly entered summary judgment on this claim.2
Appellants' second contention also fails. In Paul v. Davis, 424 U.S. 693 (1976), the Supreme Court rejected the claim that injury to reputation alone is sufficient to constitute a deprivation of "liberty" or "property" within the meaning of the due process clause, without some consequent deprivation of a more tangible right or interest. Here, appellants contend their injury to reputation is accompanied by deprivation of their right to free speech, and is therefore actionable. Insofar as appellants claim that their injury to reputation was caused by an attempt to punish them for exercising their first amendment rights, that claim is appropriately made directly under the first amendment. Moreover, as noted supra regarding that claim, appellants' proffer no proof that the helicopter surveillance bore any relationship to their protected speech against the use of herbicides. Insofar as appellants claim that damage to their reputation makes them less able to exercise their speech rights because the community is less likely to respect them because of injury to their reputation, Paul directly rejects their contention on the ground that "sanctions applied by public disapproval, not by law" are not actionable under the due process clause. 424 U.S. at 704 (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951) (Jackson, J., concurring)).
III. CLAIMS UNDER 42 U.S.C. Sec. 1983
Appellants also contend that the district court erred in dismissing their claim against the county and federal appellees pursuant to 42 U.S.C. Sec. 1983. The gravamen of their Sec. 1983 claim is that both county and federal officials conspired to deprive appellants of their constitutional rights. On a motion to dismiss, the district court dismissed the pre-August 22, 1983 claims as being barred by the relevant statute of limitations pursuant to Wilson v. Garcia, 471 U.S. 261 (1985). Prior to Wilson's imposition of Oregon's personal injury statute of limitations on Sec. 1983 claims brought in that state, this circuit applied the Oregon Torts Claims Act statute of limitations to Sec. 1983 actions arising in Oregon. See Kosikowski v. Bourne, 659 F.2d 105 (9th Cir. 1981). That statute, like the personal injury statute, imposes a two-year limitations period on Sec. 1983 claims. See O.R.S. Sec. 30.275(8); Kosikowski, 650 F.2d at 106. Because Wilson did not shorten the limitations period for bringing Sec. 1983 claims, no regroactivity analysis is implicated. Cf. Usher v. City of Los Angeles, 828 F.2d 556, 558-61 (holding that Wilson would not be applied retroactively where it would shorten the statute of limitations period). Consequently, the district court correctly dismissed appellant's pre-August 22, 1983 claims.
Claims arising after August 22, 1983 were reviewed by the district court on the merits.
The district court dismissed these claims on appellees' motions for summary judgment. We address the claims against the county first.
Appellants assert claims against both the county and its sheriff, Larry Spencer. They do not contend that either the county or the sheriff directly participated in the harassment of appellants because of their opposition to herbicides. Instead, they contend that both appellants adopted a tacit policy allowing and encouraging such harassment by deliberately failing to act to curtail such harassing activity by county agents, despite being made aware of it.
Counties and their supervisory personnel cannot be held liable under section 1983 on a theory of respondeat superior. They can, however, be held liable for deprivations of constitutional rights resulting from their policies or customs. Monell v. Department of Social Services, 436 U.S. 658, 690-92 (1978); Shaw v. California Dep't of Alcoholic Beverage Control, 788 F.2d 600, 610 (9th Cir.1986). Moreover, an individual acting in a supervisory capacity is liable only for his or her own supervisory conduct. Bergquist v. County of Cochise, 806 F.2d 1364 (9th Cir.1986).
Here, appellants do not proffer sufficient evidence to demonstrate a policy or custom on the part of the county or liability on the part of the county or sheriff. While both the sheriff and county allegedly were notified that planes were flying overhead in a manner which violated appellants' constitutional rights before the date of the August 14, 1985 overflight, no evidence in the record links these earlier flights to actions by the county. Consequently, the county appellees may not be held liable for failing to take action to stop such overflights. Nor is the August 14, 1985 overflight, by itself, sufficient evidence on which to base liability of the county or sheriff. As we stated in resolving appellants Bivens claims, an unlawful policy cannot be proved through reference to a single unconstitutional activity unless "proof of the incident includes proof that it was caused by an existing unconstitutional ... policy.... Otherwise the existence of the unconstitutional policy, and its origin, must be separately proved." City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985). Here, appellants fail to proffer proof of an unlawful policy aside from their allegations of the August 14, 1985 overflight.
Appellants also pressed Sec. 1983 claims against the federal appellees in the district court on the ground that they were acting in concert with county agents. The same grounds that warrant dismissal of the federal administrative appellees under Bivens also warrant dismissal under Sec. 1983. The two federal operational appellees, however, were not properly dismissed under Sec. 1983. It is undisputed that, during the August 14, 1985 overflight, federal operational officials acted in concert with county officials. The dismissal of the county from the case does not relieve the federal operational officials of liability. See Dennis v. Sparks, 449 U.S. 24 (1980); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970).
IV. THE NEPA CLAIMS
Appellants also contend that the district court improperly dismissed their claims contesting the adequacy of the DEA's Environmental Impact Statement (EIS) on the proposal to eradicate cannabis on federal lands. That EIS extensively analyzed the potential effects on the environment of various methods of eradicating marijuana plants. It did not, however, consider the impact of the aerial surveillance required to identify the cannabis. Appellants contend that the failure to include an analysis of the surveillance program in the EIS violates NEPA.
The district court, after remand to the agency for a statement of its grounds for excluding surveillance flights from the EIS, granted appellees' motion for summary judgment. According to the district court, the surveillance program was permissibly excluded based on the DEA's categorical exclusion of criminal investigations from EISs. We will reverse a district court's order upholding the adequacy of an EIS "only if [it is] based upon an erroneous legal standard or upon clearly erroneous findings of fact." Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 1461 (9th Cir.1984), cert. denied, 471 U.S. 1108 (1985).
A. NEPA's Statutory and Regulatory Scheme
Section 102(2)(C) of NEPA mandates the preparation of an EIS in certain circumstances. That section provides that "all agencies of the Federal Government shall ... 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 by the responsible official on--(i) the environmental impact of the proposed action. ..." 42 U.S.C. Sec. 4332(2)(C). The relevant regulations also provide that agencies will designate certain categories of proposals as normally not requiring an EIS. 40 C.F.R. Sec. 1501.4(a); see also 40 C.F.R. Secs. 1500.5(k), 1500.4(p), 1508.4. Such designations of "categorical exclusions" do not trigger NEPA requirements for EISs except under "extraordinary circumstances in which a normally excluded action may have a significant environmental effect." 40 CFR Sec. 1508.4. The relevant agencies in this case, the Department of Justice (which oversees the DEA) and the Department of Agriculture (which oversees the USFS), have both promulgated "categorical exclusion" regulations relating to civil and criminal investigative activities. See 7 C.F.R. Sec. 1b.3; 28 C.F.R. Sec. 61.4.
For proposals determined to require an EIS, regulations promulgated by the Council on Environmental Quality (the "CEQ") provide for a preliminary process known as "scoping," during which agencies must identify the specific issues requiring analysis in the same EIS. See 40 C.F.R. Sec. 1501.7. In relevant part, these regulations require that actions be considered together if they are "connected," i.e., if they:
(i) Automatically trigger other actions which may require environmental impact statements.
(ii) Cannot or will not proceed unless other actions are taken previously or simultaneously.
(iii) Are interdependent parts of a larger action and depend on the larger action for their justification. ...
40 C.F.R. Secs. 1501.7, 1508.25. The scoping regulations further provide that, after determining the scope of an action, the agency should "[i]dentify and eliminate from detailed study the issues which are not significant ..., narrowing the discussion of these issues in the statement to a brief presentation of why they will not have a significant effect on the human environment." 40 C.F.R. Sec. 1501.7(a)(3).
B. Analysis of Appellants' NEPA Claims
In this case, the surveillance that appellants seek included within the EIS fits squarely into the agencies' categorical exclusions for investigative activities. Appellants, however, claim that the surveillance at issue has significant environmental effects that place it within the "extraordinary circumstances" exception to the categorical exclusion. The agencies dispute this contention. Both agencies have determined that the cannabis surveillance flights would involve insignificant levels of ground-disturbing activity consisting primarily of noise and air disturbance from an occasional helicopter. They have also determined that any effects would be of short duration and would not occur beyond the immediate vicinity of the flight path. (ER 22, 25). Such factual determination by the agencies as to the significance of environmental effects for NEPA purposes may be reversed by the district court only if they are arbitrary or capricious. Marsh v. Oregon Natural Resources Council, 109 S.Ct. 1851, 1860 (1989).
Here, there is no evidence in the record to suggest that the district court erred in finding the agencies' determinations not to be either arbitrary or capricious. Appellants seek to suggest the contrary by proffering deposition testimony regarding harassing flights that were so low as to wreak considerable havoc on the environment, including blowing fruit from trees, domestic animals stampeding, and chickens losing their ability to lay. However, any EIS required to deal with surveillance would not analyze the effect of such deliberately illegal, harassing flights. NEPA requires EIS's to be made only in connection with "proposals" for action and not in conjunction with secret, conspiratorial, and illegal activity undertaken by an agency. NEPA, Sec. 102(2)(C); see Kleppe v. Sierra Club, 427 U.S. 390, 399 (1976) ("Respondents [environmental groups urging EIS's to be prepared] can prevail only if there has been a report or recommendation on a proposal ..."). The government should not and will not be required to plan illegal activity on its own part.3
At this time, the interplay between NEPA's scoping regulations and categorical exclusion regulations has not been fully delineated in either the relevant regulations or case law. It is not settled whether an activity that falls within a categorical exclusion must always be included in an EIS where it is also "connected" to activities considered in the EIS. Here, the categorically excluded surveillance activities would seem "connected" to the eradication activities within the meaning of the scoping regulations.
However, we need not decide whether this would require assessment of the surveillance activities in the EIS. 40 C.F.R. Secs. 1501.7, 1508.25. Even if categorically excluded activities must be considered, that requirement was satisfied here. The scoping provision requires the lead agency, after determining whether actions are connected, to "identify and eliminate from detailed study the issues which are not significant ..., narrowing the discussion of these issues in the [EIS] to a brief presentation of why they will not have a significant impact on the human environment...." 40 C.F.R. Sec. 1501.7(a)(3). Here, the relevant agencies, on remand from the district court, issued a brief explanation of the reasons surveillance activities would have no significant impact on the environment. In a letter dated May 10, 1989, submitted by the Chief of the USFS, F. Dale Robertson, found that "[c]annabis surveillance flights do not involve ground-disturbing activity. Noise and air disturbance from an occasional helicopter would be the only environmental effects expected. Those effects would be of short duration and not occur beyond the immediate vicinity of the flight path." (ER 22). A letter from the Administrator of the DEA, John C. Lawn, dated May 24, 1988, found that "potential environmental effects of aerial surveillance, such as noise, dust, human intrusion in remote areas, and the possibility that a helicopter could crash, would have only temporary and localized effects...." (ER 25). These explanations would appear to meet the scoping regulations' requirements for issues not deemed significant.
Appellants argue that the dismissal of their NEPA claim should be reversed because the DEA's explanation for excluding the operation in the initial EIS was insufficient. Appellants are clearly correct in arguing that the government's sole explanation for the exclusion, the simple statement in the EIS that "[i]ssues concerning surveillance and detection activities are beyond the scope of this EIS," was inadequate, whether the government sought to rely on the categorical exclusion regulations or the scoping regulations. However, as the district court has already remanded on this issues, the agencies have since provided adequate responses, and the scoping regulations do not require a public meeting to address these issues, see Fed.Reg. 55, 982, no point would be served by remanding on this issue.
Accordingly, we affirm the dismissal of all claims except the Bivens claims dismissed by the court on statute of limitations grounds and the claims of fourth amendment violations under Bivens and Sec. 1983 against the federal operational employees stemming from the alleged August 14, 1985 overflights. These claims will be remanded to the district court for reconsideration.
AFFIRMED in part, REVERSED in part, and REMANDED to the district court.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
It is possible, however, that, on remand, the evidence presented regarding the pre-August 22, 1983 incidents may shed further light on the evidence now reviewed regarding appellees' post-August 22, 1983 actions. The district court should therefore reevaluate the evidence now considered by this court along with the pre-August 22, 1983 evidence to determine whether summary judgment should properly be granted
It is possible that, when later evidence is viewed in context with evidence proffered by appellants regarding pre-August 22, 1983 incidents, appellants will present a viable claim under this theory. The district court should reconsider this issue on remand
The appellants assert that Foundation for North American Wild Sheep v. U.S. Dept. of Agriculture, 681 F.2d 1172 (9th Cir.1982), stands for the proposition that agencies must consider the impact of illegal acts. In Sheep, the agency erred by not considering in its environmental assessment the probability that trespassers would illegally use a proposed mining road. The case is inapposite because the illegal acts of which the agency should have taken account were acts by third parties, not deliberate acts of lawlessness by the agency itself. The remedy for the latter kind of illegality is not an EIS claim but a claim seeking to enjoin or collect damages for the deliberate lawlessness