Wilderness Watch v. Sarah Creachbaum ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILDERNESS WATCH, INC., No. 17-35117
Plaintiff-Appellant, D.C. No. 3:15-CV-5771-RBL
v.
MEMORANDUM*
SARA CREACHBAUM, in her official
capacity as the Superintendent of the
Olympic National Park, and NATIONAL
PARK SERVICE,
Defendants-Appellees,
and
NATIONAL TRUST FOR HISTORIC
PRESERVATION, WASHINGTON
TRUST FOR HISTORIC
PRESERVATION, and FRIENDS OF
OLYMPIC NATIONAL PARK,
Intervenors-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted July 9, 2018
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: FERNANDEZ and NGUYEN, Circuit Judges, and RAKOFF,** Senior
District Judge.
Plaintiff-Appellant Wilderness Watch, Inc. (“Wilderness Watch”) appeals
from the district court’s grant of summary judgment for Defendants-Appellees
Sarah Creachbaum and the National Park Service (the “Park Service”) on
Wilderness Watch’s claim that the Park Service’s rehabilitation of five historically
significant structures in the Olympic Wilderness violated the Administrative
Procedure Act (“APA”) and the Wilderness Act, 16 U.S.C. §§ 1131-33. We have
jurisdiction under 28 U.S.C. § 1291. Reviewing the district court’s decision de
novo, see Native Ecosystems Council v. Dombeck, 304 F.3d 886, 891 (9th Cir.
2002), we affirm.
Under the APA, a court may “set aside agency action” only if it determines
that the action was “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A). If the Park Service’s actions are
unambiguously contrary to the language of the Wilderness Act, then we must “give
effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v.
Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). However, if the Act is
ambiguous with respect to the agency’s decision, then, as all parties agree, so-
**
The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
2
called Skidmore deference applies. Skidmore v. Swift & Co., 323 U.S. 134 (1944);
United States v. Mead Corp., 533 U.S. 218, 227-28 (2001).
The provision at issue here is the Wilderness Act’s prohibition on
“structure[s]” and “installation[s]” within any wilderness area “except as necessary
to meet minimum requirements for the administration of the area for the purpose of
this chapter.” 16 U.S.C. § 1133(c).
1. Wilderness Watch first argues that the Park Service’s rehabilitation of the
five structures is prohibited by the unambiguous language of 16 U.S.C. § 1133(c),
because preserving man-made structures serves no “purpose” of the Wilderness
Act. The Park Service asserts that its restoration of the five structures, each of
which is either listed on the National Historic Register or eligible for listing, was in
service of Congress’s direction that wilderness areas be “devoted” to the public
purpose of “historical use.” 16 U.S.C. § 1133(b).
Binding Ninth Circuit precedent compels the conclusion that “historical use”
is ambiguous. Wilderness Watch, Inc. v. U.S. Fish & Wildlife Serv., 629 F.3d 1024
(9th Cir. 2010) [hereinafter Kofa]. In Kofa, we held that the Wilderness Act gives
agencies “conflicting policy directives” by directing them to preserve wilderness
while “at the same time providing for ‘recreational, scenic, scientific, educational,
conservation, and historical use,’” id. (quoting 16 U.S.C. § 1133(b)), and that this
conflict rendered “conservation” ambiguous. Although Kofa only addressed
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whether “conservation” is ambiguous, there is no reason why, under its logic,
“historical use” should be treated differently from “conservation”; they are both
contained within the same series in § 1133(b) and “historical use” is in no less
tension with wilderness here than “conservation” was in Kofa.
Therefore, Skidmore deference applies. Under Skidmore, the deference
accorded to agency interpretation depends on “the thoroughness evident in [the
agency’s] consideration, the validity of its reasoning, its consistency with earlier
and later pronouncements, and all those factors which give it power to persuade, if
lacking power to control.” Mead, 533 U.S. at 228 (quoting Skidmore, 323 U.S. at
140). Considering all these factors, the Park Service’s interpretation of “historical
use” as inclusive of historical preservation is entitled to deference. For example,
the Park Service has a longstanding commitment to preserving historic structures
while, at the same time, taking wilderness concerns into account.
2. Wilderness Watch alternatively argues that the Park Service’s decision to
repair or rebuild the structures in the wilderness was not the minimum necessary to
serve the purpose of historical use. See Kofa, 629 F.3d at 1036-37. We disagree.
The Park Service performed individualized assessments for each structure,
culminating in Minimum Requirement Worksheets, which explained why the on-
site rehabilitation work was required to serve historic preservation goals and
determining which tools and techniques for rehabilitation were the minimum
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necessary. While the Park Service may not have fully considered the alternative
means of preservation suggested by Wilderness Watch, such as reconstructing the
structures outside the wilderness, such consideration was not necessary since it is
clear that maintaining these structures in their original locations was essential to
preserving their historical value.1
AFFIRMED.
1
The motion of the Coalition to Protect America’s National Parks to file a brief as
amicus curiae is hereby granted.
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