San Francisco Herring Ass'n v. U.S. Dep't of the Interior

• Decision Date: 10 May 2022
• Docket Number: 20-17412
• Parties: SAN FRANCISCO HERRING ASSOCIATION, Plaintiff-Appellant, v. U.S. DEPARTMENT OF THE INTERIOR ; Deb Haaland, in her official capacity as Secretary of the Interior; United States National Park Service; Shawn Benge, in his official capacity as Deputy Director of the National Park Service ; Laura Joss, in her official capacity as General Superintendent of the Golden Gate National Recreation Area, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

33 F.4th 1146

SAN FRANCISCO HERRING ASSOCIATION, Plaintiff-Appellant,

v.U.S. DEPARTMENT OF THE INTERIOR ; Deb Haaland, in her official capacity as Secretary of the Interior; United States National Park Service; Shawn Benge, in his official capacity as Deputy Director of the National Park Service ; Laura Joss, in her official capacity as General Superintendent of the Golden Gate National Recreation Area, Defendants-Appellees.

No. 20-17412

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 25, 2022 Pasadena, California

Filed May 10, 2022

Todd R. Gregorian (argued) and Eric B. Young, Fenwick & West LLP, San Francisco, California; Stuart G. Gross, Gross & Klein LLP, San Francisco, California; for Plaintiff-Appellant.

Anna T. Katselas (argued), Andrew C. Mergen, Robert J. Lundman, and David w. Gehlert, Attorneys; Michael T. Pyle, Assistant United States Attorney; Todd Kim, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Gregory Lind, Office of the Solicitor, United States Department of the Interior, Washington, D.C.; for Defendants-Appellees.

Before: J. Clifford Wallace and Daniel A. Bress, Circuit Judges, and Morrison C. England, Jr.,^** District Judge.

OPINION

BRESS, Circuit Judge:

In 1972, Congress created the Golden Gate National Recreation Area (GGNRA), establishing a portion of San Francisco Bay as part of the National Park System. Congress included within the geographic boundaries of the GGNRA certain navigable waters that were already subject to the jurisdiction of the United States. The question in this case is whether the National Park Service may enforce in these offshore waters a prohibition on commercial fishing that applies generally in national parks. The answer to that question turns on whether Congress in the GGNRA's enabling act gave the Park Service statutory authority to administer the disputed waters of San Francisco Bay.

It quite clearly did. The text and structure of the GGNRA Act confirm that Congress has given the Park Service administrative jurisdiction over the waters in question. The contrary position of appellant San Francisco Herring Association, meanwhile, is untenable. The Association would have us hold that the Park Service could only administer the navigable waters of the GGNRA if the Service acquired a formal property interest in those waters from the State of California. But nothing in the GGNRA Act imposes such an unusual (and potentially unachievable) condition precedent upon the Park Service's usual authority over navigable waters within park boundaries. The language and context of the GGNRA Act instead reflect the commonsense conclusion that Congress did not include navigable waters within the boundaries of the GGNRA and direct their protection, only to severely hamstring the Park Service in accomplishing that objective. We therefore affirm the district court's summary judgment to the Park Service.

I

A

In 1916, Congress enacted the National Park Service Organic Act (Organic Act), ordering the Secretary of the Interior, through the Director of the National Park Service, to administer the National Park System "to conserve the scenery, natural and historic objects, and wild life in the System units and to provide for the enjoyment of [the same] in such manner and by such means as will leave them unimpaired for the enjoyment of future generations." 54 U.S.C. § 100101. "The System shall include any area of land and water administered by the Secretary, acting through the Director, for park, monument, historic, parkway, recreational, or other purposes." Id. § 100501.

To achieve these preservation objectives, the Organic Act delegated to the Secretary the authority to "prescribe such regulations as the Secretary considers necessary or proper for the use and management of System units." Id. § 100751(a). Relevant here, Congress in 1976 amended the Organic Act to clarify the Secretary's authority to "prescribe regulations ... concerning boating and other activities on or relating to water located within System units, including water subject to the jurisdiction of the United States." Id. § 100751(b); see also Pub. L. No. 94-458, sec. 1, 90 Stat. 1939 (1976).

The Park Service has adopted a host of regulations governing activities within national park units. These Park Service regulations apply, inter alia , within "[t]he boundaries of federally owned lands and waters administered by the National Park Service" and within "[w]aters subject to the jurisdiction of the United States located within the boundaries of the National Park System, including navigable waters." 36 C.F.R. §§ 1.2(a)(1), (3).

Park Service regulations generally do not apply to "non-federally owned lands and waters ... located within National Park System boundaries." Id. § 1.2(b). However, for waters subject to the jurisdiction of the United States located within park boundaries, including navigable waters, the regulations apply "except in Alaska, without regard to the ownership of submerged lands, tidelands, or lowlands."¹ Id. § 1.2(a)(3). Under the regulations, and as relevant here, "boundary" "means the limits of lands or waters administered by the National Park Service as specified by Congress." Id. § 1.4(a).

In 1972, Congress established the GGNRA as part of the National Park System. Pub. L. No. 92-589, 86 Stat. 1299 (1972) (codified at 16 U.S.C. § 460bb et seq. ). Covering land and waters in San Francisco Bay that Congress deemed to "possess[ ] outstanding natural, historic, scenic, and recreational values," the GGNRA Act provides that "the Secretary shall preserve the recreation area, as far as possible, in its natural setting, and protect it from development and uses which would destroy the scenic beauty and natural character of the area." 16 U.S.C. § 460bb. In managing the GGNRA, the Secretary "shall utilize the resources in a manner which will provide for the recreation and educational opportunities consistent with sound principles of land use planning and management." Id.

Because this case concerns the Park Service's authority under the GGNRA Act, it is necessary to explain the relevant provisions in some detail. Section § 460bb-1 defines the physical boundaries of the GGNRA. Id. § 460bb-1(a). The Recreation Area is comprised of "the lands, waters, and submerged lands" within its drawn boundaries, as specifically identified on certain property records and referenced maps. Id. Section 460bb-1(a)(1), entitled "Initial lands," largely identifies lands and waters that were part of the GGNRA at the time of the Act's passage in 1972. Compare Pub. L. No. 92-589, § 2, 86 Stat. 1299 (1972) with Pub. L. No. 109-131, sec. 202, § 2(a), 119 Stat. 2566 (2005). Section § 460bb-1(a)(2), entitled "Additional lands," lists various lands and waters that have been added to the GGNRA over time. See Pub. L. No. 93-544, § 2, 88 Stat. 1741 (1974) ; Pub. L. No. 95-625, sec. 317(a), § 2, 92 Stat. 3467 (1978); Pub. L. No. 96-199, sec. 103(a), § 2, 94 Stat. 67 (1980); Pub. L. No. 96-344, sec. 4(1), § 2, 94 Stat. 1133 (1980); Pub. L. No. 96-607, sec. 1001(1), § 2, 94 Stat. 3539 (1980); Pub. L. No. 102-299, sec. 2(b), § 2, 106 Stat. 236 (1992); Pub. L. No. 106-350, sec. 2, § 2, 114 Stat. 1361 (2000); Pub. L. No. 109-131, sec. 202, § 2, 119 Stat. 2566 (2005).

As relevant here, the boundaries of the GGNRA extend one-quarter mile offshore from Sausalito to Bolinas Bay in Marin County, around Alcatraz Island, and from Fort Mason to below Ocean Beach in San Francisco County. See 16 U.S.C. § 460bb-1(a)(1). This map in the record shows the relevant offshore boundaries:

The majority of these quarter-mile offshore areas were part of the GGNRA upon its enactment in 1972. See H.R. Rep. No. 92-1391, at 53–55 (1972) (appended maps of GGNRA's original boundaries).

The next section of the Act, codified at 16 U.S.C. § 460bb-2, is entitled "Acquisition policy." This section provides details on which federal properties would be transferred to the GGNRA upon enactment and how the Secretary may acquire additional lands, including non-federal lands, that lie within the boundaries of the GGNRA. 16 U.S.C. § 460bb-2(a). Specifically, "[e]xcept as hereinafter provided, Federal property within the boundaries of the recreation area is hereby transferred without consideration to the administrative jurisdiction of the Secretary for the purposes of this subchapter," subject to certain agreements between the Secretary and the agency formerly having jurisdiction over the property. Id. In considerable detail, § 460bb-2 then discusses the transfer of various military properties, such as former forts and airfield space, into the GGNRA. Id. §§ 460bb-2(b) – (h).

With respect to future acquisitions, § 460bb-2 provides, in pertinent part, that "[w]ithin the boundaries of the recreation area, the Secretary may acquire lands, improvements, waters, or interests therein, by donation, purchase, exchange, or transfer." Id. § 460bb-2(a). However, "[a]ny lands, or interests therein, owned by the State of California or any political subdivision thereof, may be acquired only by donation." Id. The remainder of § 460bb-2 contains extensive provisions spelling out the mechanics of the Secretary's future land acquisitions, such as financing, deferred payments, and so forth. Id. §§ 460bb-2(m), (o).

The next section of the GGNRA Act, codified at 16 U.S.C. § 460bb-3, is entitled "Administration." In relevant part, this section states that:

The Secretary shall administer the lands, waters, and interests therein acquired for the recreation area in accordance with the provisions of the [NPS Organic Act], as amended and supplemented, and the Secretary may utilize such statutory authority available to him for the conservation and management of wildlife and natural resources as he deems appropriate to carry out the purposes of this subchapter.

Id. § 460bb-3(a). As we will see, this provision is central to the...