San Francisco Herring Assoc. v. UsdoiSan Francisco Herring Assoc. v. Usdoi
OPINION
Before: J. Clifford Wallace and Daniel A. Bress, Circuit Judges, and Morrison C. England, Jr.,*
Opinion by Judge Bress
SUMMARY**
Golden Gate National Recreation Area Act
The panel affirmed the district court‘s summary judgment in favor of the government in a lawsuit alleging that the National Park Service lacked authority to prohibit commercial herring fishing in the Golden Gate National Recreation Area.
The panel held that the text and structure of the Golden Gate National Recreation Area (“GGNRA”) Act confirmed that Congress has given the Park Service administrative jurisdiction over the waters in question and authorized the Park Service to administer the navigable waters within the Recreation Area‘s boundaries one-quarter mile offshore.
The panel rejected appellant‘s argument 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. Nothing in the GGNRA Act imposed 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 reflected 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. The Park Service therefore could administer the navigable waters of San Francisco Bay within the GGNRA, with the consequence that it may enforce its commercial fishing rules in those waters.
COUNSEL
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.
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
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.”
The Park Service has adopted a host of regulations governing activities within national
Park Service regulations generally do not apply to “non-federally owned lands and waters . . . located within National Park System boundaries.”
In 1972, Congress established the GGNRA as part of the National Park System.
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.
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
The next section of the Act, codified at
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.”
The next section of the GGNRA Act, codified at
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.
B
The San Francisco Herring Association is a California-based non-profit group composed of small business owners who fish in the Bay Area. Suing on behalf of its members, the Association seeks to prevent the Department of Interior, the Park Service, and various agency officials (collectively, the Park Service) from enforcing in the GGNRA a commercial fishing prohibition that applies generally in national park units. The regulation at issue, which was promulgated in 1983, prohibits “[c]ommercial fishing, except where specifically authorized by Federal statutory law.”
Each year from approximately November to March, herring enter San Francisco Bay to spawn, concentrating along the shores of Sausalito and Tiburon. Fishermen have caught herring from the Bay since at least the mid-nineteenth century, but more specialized fishing did not begin for herring roe, or eggs, until the 1960s. According to the Association, the waters at issue in this case are essential to the roe fishery because fishing is concentrated in discrete spawning areas near the shore.
The California Department of Fish and Wildlife (CDFW) has extensively regulated the herring roe fishery since 1973 to ensure that the fishery is safe and sustainable. Each year, prior to the beginning of the fishing season, CDFW issues an information packet to fishermen. Although the parties dispute when the Park Service began to assert administrative jurisdiction over the navigable waters in the GGNRA, by 2007 CDFW was including a formal notice in its information packet stating that the National Park Service had “exclusive jurisdiction” over the shoreline waters in question.
In 2013, the Association filed this lawsuit against the Park Service, alleging that the Service lacked the statutory authority to prohibit commercial herring fishing in the GGNRA. The district court disagreed and granted summary judgment for the government.
In two previous appeals, we held first that the district court lacked subject matter jurisdiction over the case because the Association had failed to identify any final agency action under the Administrative Procedure Act (APA), see San Francisco Herring Ass‘n v. U.S. Dep‘t of Interior (Herring I), 683 F. App‘x 579, 580 (9th Cir. 2017), and then that the Association had later sufficiently alleged final agency action based on new allegations of specific enforcement efforts against individual fishermen. See San Francisco Herring Ass‘n v. U.S. Dep‘t of Interior (Herring II), 946 F.3d 564, 576–77 (9th Cir. 2019). On remand from Herring II, the district court then granted summary judgment to the Park Service, essentially reinstating its original decision that led to Herring I.
The Association has appealed for a third time. With the final agency action issue settled, we now confront the merits of the Association‘s statutory argument, reviewing the district court‘s grant of summary judgment de novo. Ctr. for Biological Diversity v. Esper, 958 F.3d 895, 903 (9th Cir. 2020).
II
Under the APA, a court may set aside final agency action if it determines
In conducting this inquiry, we employ “traditional tools of statutory construction.” Id. at 843 n.9. We construe a statute “in accordance with its ordinary and natural meaning,” N.L. v. Credit One Bank, N.A., 960 F.3d 1164, 1167 (9th Cir. 2020), recognizing that “[i]t is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme,” Davis v. Mich. Dep‘t of Treasury, 489 U.S. 803, 809 (1989). See also Nken v. Holder, 556 U.S. 418, 426 (2009) (“[S]tatutory interpretation turns on the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” (quotations omitted)).
We hold that based on its language and structure, the GGNRA Act authorizes the Park Service to administer the navigable waters within the Recreation Area‘s boundaries one-quarter mile offshore. The Park Service may therefore enforce its generally applicable commercial fishing prohibition in the disputed waters of the GGNRA.
A
Based on the statutory provisions as we set them out above, one might naturally assume that the Park Service of course has the statutory authority to administer navigable waters within the GGRNA‘s drawn geographic boundaries. But the Association argues otherwise, pointing specifically to
We do not think the Association‘s argument reflects the best reading of the statutory text. It is not disputed that the navigable waters at issue here are already within the jurisdiction of the United States, i.e., subject to federal regulation. See, e.g., United States v. Rands, 389 U.S. 121, 122–23 (1967) (discussing congressional power over navigable waters); see also Utah Div. of State Lands v. United States, 482 U.S. 193, 202 (1987) (“[E]ven if the land under navigable water passes to the State, the Federal Government may still control, develop, and use the waters for its own purposes.”). And the Organic Act specifically gives the Secretary 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.”
There is no such conflict here. Congress in the GGNRA Act squarely placed the navigable waters at issue here within the boundary lines of the Recreation Area. See
Read together, these provisions show that Congress granted the Secretary the authority to administer navigable waters within the Recreation Area‘s boundaries that were already subject to federal jurisdiction. To “acquire” means “[t]o gain possession or control of.” Acquire, Black‘s Law Dictionary (8th ed. 2004). It is well established that “running waters cannot be owned—whether by a government or by a private party.” Sturgeon, 139 S. Ct. at 1078 (citing Fed. Power Comm‘n v. Mohawk Power Corp., 347 U.S. 239, 247 n.10 (1954)). With that legal backdrop, of which Congress is presumed to be aware, see, e.g., Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184–85 (1988), when Congress placed the disputed navigable waters within the boundaries of the GGNRA and directed their protection, the Park Service necessarily gained control over them, which is to say that it sufficiently “acquired” them for the purpose of administering them.
The GGNRA‘s differential treatment of land and navigable waters confirms our reading of the statute. In setting the boundaries of the GGNRA, Congress transferred existing federal lands into the GGNRA but also included within the boundaries of the Recreation Area nonfederal lands over which the Park Service
Other provisions are to similar effect. Section 460bb-2(m), for example, provides detailed provisions for how the Secretary may finance land acquisitions but provides no guidance for acquiring rights in navigable waters. Similarly, § 460bb-2(o), entitled “Payment deferral; scheduling; interest rate,” explains that “[i]n acquiring those lands authorized by the Ninety-fifth Congress for the purposes of this subchapter, the Secretary may, when agreed upon by the landowner involved, defer payment or schedule payments.”
Finally, the Association‘s position is not only an inferior reading of the statutory text but could result in a significant implausibility. The GGNRA Act prevents the Secretary from acquiring property through eminent domain.
The Association now suggests in its briefing that there is “some conveyance” that would allow the Service to “administer the waters generally” “without offending public trust rights, and thus give the GGNRA Act meaning and effect.” But the Association has not sufficiently demonstrated how such a transaction with the State would work or whether it could even be accomplished when the waters themselves cannot be owned. The principal case the Association cites concerned an action “by the state of California to quiet its title to certain lands.” People v. Cal. Fish Co., 138 P. 79, 81 (Cal. 1913) (emphasis added). And even if the Association‘s contemplated conveyance were possible, the lack of any provision in the GGNRA for such a novel “acquisition” convinces us that this is not what Congress had in mind when it included the disputed waters within park boundaries and ordered the Park Service to protect the area to the fullest extent possible.
B
In its reply brief, the Association for the first time argued that the Supreme Court‘s
The dispute in Sturgeon arose from the Park Service‘s attempt to apply its regulation banning hovercrafts,
National Park system units in Alaska—comprising nearly 44 million acres—are drawn based on geographical boundaries that include land held by the State, Indian tribes, and private landowners. Id. at 1076–77. In the usual course, “inholdings” such as these would typically be subject to Park Service regulations because under the Organic Act and implementing regulations, the Park Service is authorized to regulate within park boundaries without regard to ownership of the lands or waters. Id. at 1076 (citing
The unique statutory language is found in Section 103(c) of ANILCA, which provides, in pertinent part, that “[o]nly those lands within the boundaries of any conservation system unit which are public lands (as such term is defined in this Act) shall be deemed to be included as a portion of such unit.”
Based on this language, Sturgeon held, “[a]s a matter of geography, both public and non-public lands fall inside those parks’ boundaries,” but “as a matter of law, only public lands would be viewed as doing so.” Sturgeon, 139 S. Ct. at 1081. Sturgeon thus held that the Park Service could not regulate the waters within the Yukon-Charley Rivers National Preserve. The United States did not own “title” to the Nation River because, as we have noted, “running waters cannot be owned—whether by a government or by a private party.” Id. at 1078. And Alaska owned title to the lands beneath the river. Id.2
The GGNRA Act does not use similar language, nor does it explicitly “deem” waters inside the Recreation Area‘s boundaries as outside the National Park System entirely. See Sturgeon, 139 S. Ct. at 1081 (“The key word here is ‘deemed.‘”). Instead, the GGNRA reflects the opposite approach: the disputed navigable waters of San Francisco Bay are affirmatively part of the park, with no further requirement that anything more be done to make them so. That makes some sense considering that whereas ANILCA drew national park boundaries around 44 million acres in Alaska—of which 18 million were not owned by the federal government, id. at 1075—we are considering here a drastically smaller quarter-mile offshore zone that was specifically included as part of the GGNRA‘s boundaries. Congress did not draw a massive circle around San Francisco Bay that happened to include these waters; it instead intentionally identified specific quarter-mile offshore areas for designated inclusion in the park.
Moreover, while the GGNRA Act reflects an analogous approach to ANILCA when it comes to non-federal land, the GGNRA Act differs from ANILCA when it comes to navigable waters: it does not equate “land” with “navigable waters” for legal purposes. Cf. id. at 1086 (“ANILCA does not readily allow the decoupling of navigable waters from other non-federally owned areas in Alaskan national parks for regulatory . . . purposes.”). Although “we must read ANILCA as treating identically solid ground and flowing water,” id., the text of the GGNRA Act does not reflect that same approach. That is because, as we explained above, the GGNRA Act makes extensive provision for the acquisition of non-federal lands and discusses at length particular properties for inclusion, but says nothing about acquiring property interests in navigable waters.
In short, Sturgeon shows that when Congress wants to disallow the Park Service from exercising its usual authority over navigable waters falling within the drawn boundaries of a national park system unit, Congress makes that intention clear. As the Supreme Court noted, “[i]f Sturgeon lived in any other State, his suit would not have a prayer of success.” Id. at 1080; see also id. at 1075 (explaining that in ANILCA, “Congress set aside extensive land for national parks and preserves—but on terms different from those governing such areas in the rest of the country”); id. at 1087 (“ANILCA recognized that when it came to navigable waters—just as to non-federal lands—in the new parks, Alaska should be the exception, not the rule.” (quotations omitted)).
The Supreme Court in Sturgeon also made clear that its construction of ANILCA still “le[ft] the Park Service with multiple tools to ‘protect’ rivers in Alaskan national parks,” including purchasing the submerged lands from Alaska. Id. at 1086–87 (citing
The substantial textual differences between ANILCA and the GGNRA Act thus confirm that Sturgeon does not assist the Association, but instead supports the government. While Congress in ANILCA “created an Alaska-specific exception” to the Park Service‘s usual authority, id. at 1072, we conclude it did not create such an exception for the disputed navigable waters in San Francisco Bay. We therefore hold that the Park Service may administer the navigable waters of San Francisco Bay within the GGNRA, with the consequence that it may enforce its commercial fishing rules in those waters.3
AFFIRMED.