United States v. 313.34 Acres of Land, More or Less, Situated in Jefferson County, State of Washington, Etc., Jeffrey Jay Kamp Jill Jay Kamp

923 F.2d 698, 91 Cal. Daily Op. Serv. 432, 91 Daily Journal DAR 650, 1991 U.S. App. LEXIS 385, 1991 WL 2551

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 15, 1991
• Docket: 89-35529
• Status: Published

Opinions

DAVID R. THOMPSON, Circuit Judge:

Following final judgment in the government’s condemnation action, Jeffrey and Jill Kamp (the “Kamps”) appeal the district court’s denial of their motion for life use of their property pursuant to the Protection Island National Wildlife Refuge Act of 1982, Pub.L. No. 97-333, §§ 2-8, 96 Stat. 1623 (the “Act”). The district court held none of the structures on the Kamps’ property on Protection Island is “suitable for use as a personal residence” within the meaning of the Act. The court based this determination on the fact that no building permit was issued for any of the structures, a circumstance which the Fish and Wildlife Service (the “Service”) asserted was necessary to a residence being “suitable” under the Act. The district court concluded that the Act did not require the Fish and Wildlife Service to offer the Kamps a life use, or a shorter extended period of use, of their property. We affirm.

FACTS

Protection Island is a 400-acre island located at the entrance of Puget Sound in Jefferson County, Washington. The Island “provides nesting habitat for 72 per cen-tum of the entire seabird population of Puget Sound and the Strait of Juan de Fuca” and “also provides refuge for other species, including the endangered bald eagle and the harbor seal.” Id. § 2(1) and (2). Congress described Protection Island as “a nationally significant environmental resource threatened with destruction through residential and related development.” Id. § 2(3).

In order to preserve the Island’s natural habitat, Congress passed the Protection Island National Wildlife Refuge Act of 1982. The Act authorized the Secretary of the Interior “to acquire lands and waters or interests therein within the boundaries of the refuge” by purchase, donation, exchange or condemnation. Id. § 4(a) and (e). Congress recognized, however, that its attempt to protect the wildlife on Protection Island could impact the Island’s human population as well. In consideration of this, the Act directed the Secretary to offer to owners of land that contains “a structure, suitable for use as a personal residence, that was located on the land on January 1, 1982,” a life use or, at the option of the landowner, a shorter extended use of the property. Id. § 4(b)(1)(A). In a separate provision, the Act also permitted the Secretary to give “special consideration to providing for extended use reservations” on lots which contain no such structures “to the extent compatible with the purposes for which the refuge is established.” Id. § 4(c).

In 1976, the Kamps inherited from their grandfather three adjacent lots, Lots 3092, 3093 and 3094, on Protection Island. There are three trailers on Lot 3092. There is one trailer on Lot 3093. All trailers located on the lots are equipped with functional bathroom and kitchen facilities, and heating and lighting systems. The trailer on Lot 3093 contains a tub and shower, and is permanently fixed to the land by a septic tank connection and by a wooden deck with posts set in concrete. In addition to the trailers on Lot 3092, there is a three-room wood cabin with a wood stove and propane fueled lights and stove.

The Act gave to the Service the authority to define the phrase “structures, suitable for use as a personal residence.” The Service defined the phrase as including only those structures which are “habitable.” Relying on the Act’s legislative history and after consultations with the local planning department, the Service determined that a structure can be deemed “habitable” only if constructed pursuant to approved building permits. Because no permit is on file for any of the Kamps’ structures, the Service did not offer the Kamps a life estate or an extended use reservation for any of their lots.

On April 11, 1986, the United States filed a complaint in condemnation to acquire 313.34 acres on Protection Island. The government simultaneously filed a declaration of taking for numerous lots on the Island, including Lots 3092, 3093, and 3094. The sum of $1,538,102 was deposited as the estimated just compensation for the taking.

The Kamps filed a motion for life use in the district court, asserting that two of the trailers on Lots 3092 and 3093 and the wood cabin on Lot 3092 were “structures, suitable for use as a personal residence” within the meaning of the Act. In denying the motion, the court found that the government had “proven by a preponderance of the evidence that defendants Kamp are not entitled to life use of structures located on Lots 3092, 3093, and 3094 because the structures are not ‘suitable for use as a personal residence’ in that, no building permits were issued for any of the structures.” This appeal followed.¹

DISCUSSION

Section 4(b)(1) of the Act provides:

In the case of any person who is the owner of land as of January 1, 1982, that'—

(A) is within the boundaries of the refuge and contains a structure, suitable for use as a personal residence, that was located on the land on January 1, 1982; and

(B) in the judgment of the Secretary the United States should acquire a fee simple interest therein;

the Secretary shall first offer to acquire the land subject to a life use, or, at the option of the owner, to an extended use reservation for a shorter term of years, subject to such terms and conditions as the Secretary deems necessary or appropriate to insure that the land will be used in a manner that is compatible with the purposes for which the refuge is established.

The Kamps contend that the Service’s interpretation of the phrase “structures, suitable for use as a personal residence” conflicts with the plain meaning of section 4(b)(1)(A) of the Act. Relying on dictionary definitions of the words of the statute, the Kamps argue that “suitable for use as a personal residence” means nothing more than “fit and appropriate for use as a home.” They therefore conclude that, because the structures on their land contain “functional bathrooms, kitchens, heating and lighting systems as well as sleeping facilities,” Appellant’s Brief at 22, the Act requires the Secretary to offer them a life use of their property.

Congress nowhere defined the crucial phrase “structure, suitable for use as a personal residence.” Had it done so, of course, our task would be complete. See Chevron USA v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) (unambiguously expressed intent of Congress controls statutory interpretation). “If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” Id. at 843 n. 9, 104 S.Ct. at 2781 n. 9.

Where “Congress has not directly addressed the precise question at issue,” however, we do not simply impose our own construction on the statute. Id. at 843, 104 S.Ct. at 2781. Instead, we turn to the' interpretation of. the administrative agency charged with administering the statute in question.²

While we recognize that “the judiciary is the final arbiter of issues of statutory construction, an administrative agency’s interpretation of a statute it is charged with administering is accorded substantial deference.” Seldovia Native Ass’n v. Lujan, 904 F.2d 1335, 1342 (9th Cir.1990). We thus stress the limited nature of our review of the Service’s interpretation of the statutory language. “[W]e should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.” United States v. Shimer, 367 U.S. 374, 383, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961).

The interpretation given a statute by an agency need not represent the only permissible reading of the statutory language, or the “best” reading, or the reading the court might have given the statute had the issue been considered initially in a judicial proceeding. Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 39, 102 S.Ct. 38, 46, 70 L.Ed.2d 23 (1981). Instead, the agency’s interpretation of the statutory language needs only be “based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. at 2782. To prevail, then, the Kamps must demonstrate that the Service’s interpretation finds no reasonable support in the text of the Act or its législative history.

In judging the Service’s interpretation of the statute, we first examine the statutory text itself. “In construing a federal statute it is appropriate to assume that the ordinary meaning of the language that Congress employed accurately expresses the legislative purpose.” Mills Music, Inc. v. Snyder, 469 U.S. 153, 164, 105 S.Ct. 638, 645, 83 L.Ed.2d 556 (1985) (quotation and footnote omitted). If the words of the statute are unambiguous, our inquiry is at an end, and the plain meaning of the text must be enforced. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989).

We cannot say there is a plain meaning of the phrase “structure, suitable for use as a personal residence” which leaves no room for doubt as to the intent of Congress. The word “suitable” itself can take on many meanings depending upon the end in view and the individual doing the viewing. “Suitable” as applied to a property owner or occupant might include considerations such as whether a structure has inside plumbing, a sound roof, room to move about, light and air, and sufficient integrity to assure reasonable protection against the elements. A local governmental entity responsible for land use in the area might be more interested in additional factors such as those typically taken into consideration in issuing building permits. To the federal agency responsible for implementing the Act, other concerns might legitimately assume importance. For example, the Service might consider “suitable for use as a personal residence” only those structures that have little adverse environmental impact. In short, the statutory text gives little basis for choosing among various alternatives, and the word “suitable” is ambiguous.

Viewed against the purpose of the statute, the ambiguous term “suitable” takes on the flavor of something that is consistent with a structure remaining on the Island and being occupied without disrupting or impairing the preservation of the natural habitat. See Bob Jones Univ. v. United States, 461 U.S. 574, 586, 103 S.Ct. 2017, 2025, 76 L.Ed.2d 157 (1983) (in construing an ambiguous phrase in a statute a court should “ ‘take in connection with it the whole statute ... and the objects and policy of the law’ ”) (quoting Brown v. Duchesne, 60 U.S. (19 How.) 183, 194, 15 L.Ed. 595 (1857)). A structure “suitable for use as a personal residence” in this context may, for example, be a structure which has appropriate sanitation facilities, materials which will not have an adverse impact on the environment as the structure is used and occupied over the years, appropriate connection to the ground and a method for handling water runoff so as not to concentrate the flow of surface waters in a manner which will erode or otherwise damage the environment. The Service’s interpretation of the term “suitable” with reference to the requirement of a building permit plausibly furthers these ends. The Kamps have not shown that this “accommodation is not one that Congress would have sanctioned.” Shimer, 367 U.S. at 383, 81 S.Ct. at 1560.

The Service’s interpretation also finds some support in the legislative history. United States v. State of Washington, 872 F.2d 874, 879 (9th Cir.1989) (where text is ambiguous, resort may properly be had to legislative history). Indeed, at one point the Senate Report explicitly states that, “a structure is a personal residence when it has been constructed in accordance with residential building permits issued by the appropriate county authority or is part of the county assessor’s determination of the property’s assessed value as an ‘improved’ property. The mere fact that persons sleep in the structure on some nights each year is insufficient to render a structure a ‘personal residence.’ ” Senate Report No. 426, 97th Cong., 2d Sess. 4 (1982).

We recognize that other parts of the legislative history contradict the Service’s interpretation. It is not our task, however, to glean from the legislative history the “best” or “most convincing” interpretation. The Service has construed the statute to mean that for a structure to be “suitable for use as a personal residence” it must have been built pursuant to local building permits. This interpretation is plausible given the statutory text, the legislative history, and the purpose of the statute. In sum, we cannot say that the Service’s interpretation is “unreasonable” even though we might believe another interpretation is just as reasonable, or perhaps more reasonable. See Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. at 39, 102 S.Ct. at 46.

The Kamps also argue that even if the Service’s interpretation of the statute is upheld, the district court erred in finding that the necessary building permit for the trailer on Lot 3093 had not been issued.

At trial, the Kamps presented evidence suggesting that it was the Jefferson County auditor’s routine practice to require an individual applying for a septic tank permit to first receive a building permit. Because a septic tank permit had been obtained for the trailer on Lot 3093, the Kamps argue it should be presumed that the building permit for this structure was also issued, even though they cannot provide a copy of a building permit.

“Absent evidence to the contrary, the applicable presumption is that the ordinary course of business was followed and that the law was obeyed; also that official duty was regularly and faithfully performed.” United States v. State of Washington, 233 F.2d 811, 816 (9th Cir.1956). Even assuming, however, that the Kamps are entitled to the benefit of this presumption, the district court did not err in finding that the building permit was never issued. The presumption the Kamps describe is not an irrebuttable one. Instead, it simply shifts to the Service the burden of going forward with evidence demonstrating that no permit was obtained. The Service presented at trial sufficient evidence to show that the “routine” in question here was easily circumvented and often ignored. Notwithstanding the presumption, the district court’s finding that no building permit was issued for any of the structures on the Kamps’ lots is not clearly erroneous.

The judgment of the district court is AFFIRMED.

1 . The parties stipulated to just compensation of $19,926 for the three lots, but reserved the Kamps' right to appeal the denial of life use. A final judgment was entered on June 22, 1989. Enforcement of that judgment has been stayed pending this appeal.

2 . We reject at the outset the Kamps’ argument that the Service did not have the authority to interpret the statutory life use language. Section 6 of the Act provides that "[p]rior to the establishment of the refuge and' thereafter, the Secretary [of the Interior] shall administer the lands, waters, and interests therein acquired for the refuge in accordance with the National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. § 668 dd-ee)." Pub.L. No. 97-333, 96 Stat. 1623, 1624. Title 16, § 668 dd(a)(l) of the United States Code provides that all "wildlife refuges ... shall be administered by the Secretary through the ■ United States Fish and Wildlife Service.” Thus, the Act supplies the Service with the authority necessary to interpret and apply the life estate provision. The Service’s construction of the life estate provision constitutes an interpretive rule and is not subject to the APA’s rulemaking requirements. See Powderly v. Schweiker, 704 F.2d 1092, 1098 (9th Cir.1983).