Wilderness Watch v. Sarah Creachbaum

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 19, 2018
• Docket: 17-35117
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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

3 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

4 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.