Unpublished Disposition, 881 F.2d 1085 (9th Cir. 1988)

MEMORANDUM^* 

Appellants, residents of an area in Montana undergoing federal reconstruction projects, seek a contempt order against the Federal Highway Administration ("FHWA") based on their claim that the FHWA is in violation of an injunction entered by this court in Vance v. Block, 840 F.2d 714 (9th Cir. 1988) ("Vance I"). The district court denied the motion for contempt, from which appellants timely appeal. We affirm.

FACTS AND PRIOR PROCEEDINGS

The Yaak River Road ("the Road") extends approximately seventy miles from U.S. Highway 2, west of Libby, Montana, to its junction with Montana Highway 37 and U.S. Highway 93 near Eureka, Montana. The Road winds through the Yaak and Eureka Ranger Districts of the Kootenai National Forest, located in northwestern Montana.

For purposes of reconstruction, the Road has been separated into six separate segments, with the Forest Service possessing primary jurisdiction over reconstruction of four of the segments. The reconstruction work of the Forest Service on the main Road which began in the late 1960s has largely been completed. No comprehensive environmental impact statement ("EIS") has ever been prepared for the reconstruction of the entire Road.

Meanwhile, the Federal Highway Administration ("FHWA") has been involved in its own reconstruction project of a 17-mile segment of the Road which runs from the Sylvanite Ranger Station to the community of Yaak ("Sylvanite-Yaak Reconstruction Project"). The FHWA requested, and obtained, a biological assessment ("BA") from the Forest Service for the project, prepared pursuant to an interagency agreement and the Endangered Species Act, 16 U.S.C. § 1536(c) (1) (1982). The BA concluded that the Project would not adversely affect any endangered or threatened species. The FHWA also prepared an environmental assessment ("EA") for the Sylvanite-Yaak Reconstruction Project, eventually issuing a Finding of No Significant Impact ("FONSI"), and therefore concluding that the preparation of an EIS was not required. Appellant Vance contacted the FHWA about its prospective Project, thus indicating he had knowledge of its existence. Up to this time, however, neither appellant had challenged the Sylvanite-Yaak Reconstruction Project judicially.

In August 1983, whence this action has its origins, appellants filed a complaint in federal district court requesting declaratory and injunctive relief based on the allegation that the Forest Service in its reconstruction projects had violated and was violating the Endangered Species Act and the National Environmental Policy Act. The complaint names the Secretary of Agriculture, the Chief of the Forest Service, and the Region I Forester (collectively, "appellees"), but does not name the FHWA as a defendant. The FHWA has never been joined as a party.

Appellants filed a motion for summary judgment, and the appellees filed a cross-motion for summary judgment. The district court eventually granted appellees' cross-motion for summary judgment. Vance v. Block, 635 F. Supp. 163 (D. Mont. 1986). On appeal, a separate panel of this court reversed the entry of summary judgment, ruling that the Forest Service's "Porcupine-Sullivan and Yaak 92 Road Project EAs do not demonstrate that the Forest Service took a 'hard look' at the environmental consequences of its actions." Vance I, 840 F.2d at 719. In addition, the court issued an order "to enjoin the defendants from conducting further reconstruction and timber sales until the district court resolves these issues consistent with this opinion." Id. at 722. It is this injunction that forms the basis of the controversy presently before us.

Appellants first raised specifically the issue of enjoining the FHWA in its work on the Sylvanite-Yaak Reconstruction Project in their petition for rehearing of Vance I. In their petition, appellants sought a ruling from the court expressly including the FHWA within the scope of the injunction. The court denied the petition, but amended the language of its injunction from "we enjoin further reconstruction and timber sales" to "we enjoin the defendants from conducting further reconstruction and timber sales." Id. (emphasis supplied).

Appellants then filed a motion for contempt in federal district court, alleging that the FHWA was in violation of the Vance I injunction for its work on the Sylvanite-Yaak Reconstruction Project. The district court denied the motion, ruling that the injunction barring the carrying out of any further "connected actions" did not include the FHWA Project. Appellants timely appealed, and moved for the Vance I panel to issue an injunction pending appeal. The Vance I panel issued an order declaring that it lacked jurisdiction over the emergency motion because " [t]he jurisdiction or involvement of the Federal Highway Administration over the Yaak River Road was not addressed in [the Vance I] appeal." Vance v. Block, No. 86-3808 (Dec. 23, 1988) (order).

We have jurisdiction over this appeal under 28 U.S.C. § 1291. The denial of a motion for civil contempt after the entry of judgment which forms the basis for the motion is final and reviewable because no further action is necessary in the district court. See Weyerhaeuser Co. v. International Longshoremen's & Warehousemen's Union, 733 F.2d 645, 646 (9th Cir. 1984).

DISCUSSION¹ 

The central issue before us is whether the FHWA, which was not a party to the original action giving rise to the injunction in Vance I, nevertheless can be held in contempt if it violated that injunction.

A court order binds parties as well as those with actual knowledge of the order who act in concert with parties. United States v. Laurins, 857 F.2d 529, 535 (9th Cir. 1988); United States v. Baker, 641 F.2d 1311, 1314 (9th Cir. 1981); Fed. R. Civ. P. 65(d) (injunction "is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise"). While the technical scope of the Rules of Civil Procedure is confined to federal district courts, see Fed. R. Civ. P. 1, Rule 65(d) presumably applies to injunctions entered by the courts of appeals by analogy. NLRB v. Brooke Industries, 867 F.2d 434, 435 (7th Cir. 1989). A separate rule provides for enforcement against non-parties. Fed. R. Civ. P. 71 ("when obedience to an order may be lawfully enforced against a person who is not a party, that person is liable to the same process for enforcing obedience to the order as if a party").

Rule 65(d) derives from the "common-law doctrine that a decree of injunction not only binds the parties defendant but also those identified with them in interest, in 'privity' with them, represented by them or subject to their control." Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945). "In essence it is that defendants may not nullify a decree by carrying out prohibited acts through aiders and abettors, although they were not parties to the original proceeding." Id. at 14.

The fact that the FHWA is not a party is not contested. Indeed, at oral argument, counsel for appellants conceded that the FHWA was not served and that even though he knew of the FHWA's work on the Sylvanite-Yaak Project, he never sought to join the FHWA as a party. Thus, whether the FHWA is bound by the Vance I injunction, and in turn, whether it can be held in contempt, is governed by whether the agency fits within one of the categories of non-parties bound by a court order as listed in Rule 65(d).

Appellants argue that although the FHWA is not a named party to this action, the agency nonetheless is included within the purview of the injunction because the FHWA was in active concert or cooperation with the Forest Service, which is a named party to the Vance I order. In support of this contention and its related assertion that the Regal Knitwear criteria are satisfied, appellants cite to instances of interagency cooperation between the FHWA and the Forest Service. Foremost among these examples is the fact that the Forest Service prepared a BA of the Sylvanite-Yaak Reconstruction Project at the FHWA's request.

Cooperation and detailed communication among federal agencies is commonplace in the complex labyrinth of overlapping agency responsibility and jurisdiction. But cooperation is not necessarily tantamount to "active concert." Appellants cite to no cases in which interagency coordination on its own constituted "active concert" for purposes of Rule 65(d). On the facts of this case we are not persuaded that the trial court erred in denying the motion for contempt.

Because the FHWA is neither a party nor qualifies as a non-party bound by the Vance I injunction under Fed. R. Civ. P. 65(d), it cannot be held to be in contempt for an alleged violation of the injunction.² 

AFFIRMED.