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
9th Cir.
1991
Check Treatment

*2 however, Congress recognized, that its at- HALL, Before THOMPSON and tempt protect the wildlife on Protection LEAVY, Judges. Circuit impact Island could the Island’s human population as well. consideration of THOMPSON, Judge: DAVID R. Circuit this, Secretary the Act directed offer govern- Following judgment final to owners of land that “a struc- contains action, ture, Jeffrey for use as a resi- ment’s condemnation suitable dence, located the land on filed a motion for life use 1, 1982,” or, court, January a life use at the asserting district that two of the landowner, option of the a shorter extended trailers on Lots 3092 and 3093 and the 4(b)(1)(A). In property. “structures, use of the a wood cabin on Lot 3092 were separate provision, permitted the Act also suitable for use as a residence” *3 Secretary give “special the consideration meaning denying within the of the Act. In providing use for extended reservations” motion, the the court found that the no such on lots contain government “proven by preponder- had a compatible pur- “to the extent with the Kamp ance of the evidence that defendants poses refuge the for which established.” are not entitled to life use of structures 4(c). located on Lots and 3094 be- cause the structures are not ‘suitable for Kamps inherited from their that, personal use as a residence’ in no lots, grandfather adjacent three Lots permits any were issued for of the 3093 and on Protection Island. There appeal structures.” This followed.1 are three trailers on Lot 3092. There is trailer Lot All one on 3093. trailers located DISCUSSION equipped on the lots are with functional facilities, 4(b)(1) provides: bathroom and kitchen and heat- of the Act Section ing lighting systems. The trailer on and any person In the case of who is the shower, contains a tub and and is Lot 3093 1, 1982, January owner of land as of by septic permanently fixed to the land a that'— by a tank connection and wooden deck (A) is within the boundaries of the ref- posts in concrete. In addition to the set structure, uge and a contains suitable for 3092, there a trailers on Lot three-room personal residence, use as a that was propane with a wood stove and wood cabin 1982; January 1, on the located land on lights fueled and stove. (B) gave authority judgment Secretary

The Act to the in the of the Service “structures, phrase acquire to define the suitable the United States should a fee therein; personal simple for use as a residence.” The Ser- interest phrase including only as vice defined Secretary acquire first shall offer to those structures which are “habitable.” use, or, subject the land to a life at the Relying legislative history the Act’s on owner, option of the to an extended use planning after consultations with the local years, reservation for a shorter term of department, the determined that a Service subject to such terms and conditions as only can be deemed “habitable” structure Secretary appro- deems pursuant approved if constructed build- priate to insure that the land will used be ing permits. Because no is on file compatible in a manner that is with the structures, any Kamps’ of the the Ser- purposes refuge for which the is estab- Kamps life did not offer the estate or vice lished.

an extended use reservation of The contend that the Service’s in- their lots. “structures, terpretation phrase suit- 11, 1986, personal as a April On the United States filed able for use residence” con- plain meaning complaint acquire in condemnation to flicts with the of section 4(b)(1)(A) Relying dictionary of the Act. acres on Protection Island. 313.34 statute, simultaneously filed a declara- definitions of the words of the government taking Kamps argue for use as a tion of for numerous lots on “suitable 3092, 3093, Island, nothing more including Lots and 3094. residence” means $1,538,102 appropriate for deposited as the than “fit and use The sum that, They be- just compensation taking. for the home.” therefore conclude estimated stipulated just compensation judgment parties final was entered on June 1. The lots, $19,926 judgment stayed Enforcement of that has been for the three but reserved the pending appeal. Kamps' right appeal this the denial of life use. A 374, 383, the structures on their contain U.S. cause S.Ct. 6 L.Ed.2d kitchens, bathrooms, heating “functional systems sleeping as lighting as well interpretation given a statute facilities,” Appellant’s Brief at Act agency need not represent only Secretary them requires the to offer a life permissible reading lan property. use of their guage, reading, or the “best” or the read Congress nowhere defined the crucial ing might have given court the statute phrase for use suitable had the initially issue been in a considered so, it done residence.” Had judicial proceeding. Federal Election course, complete. task would be our See Comm’n v. Democratic Senatorial Cam v. Natural De- Chevron USA Resources Comm., paign 39, 102 S.Ct. *4 Council, 837, 842-43, 467 104 U.S.

fense 46, (1981). Instead, 70 L.Ed.2d 23 the 2778, 2781-82, (1984) L.Ed.2d 694 S.Ct. 81 agency’s interpretation statutory of the (unambiguously expressed intent of Con- language only per needs be “based on a interpretation). gress statutory controls missible construction of the statute.” court, employing “If a traditional tools of 843, Chevron, at at 2782. 467 U.S. 104 S.Ct. construction, statutory ascertains that Con- then, prevail, To the must demon gress precise ques- the had intention on interpretation strate the that Service’s issue, tion that is the and at intention law support no finds reasonable in the text of 9,n. given must be effect.” Id. at 843 104 législative the Act history. or its n. at 2781 9. S.Ct. In judging interpretation the of Service’s directly has not “Congress Where statute, the statutory we first examine the issue,” at precise question the addressed text “In construing itself. a federal stat- however, impose not simply we do our own it appropriate ute is to assume that the 843, 104 at construction on the statute. ordinary meaning of the that Instead, turn at 2781. we to the' S.Ct. Congress employed expresses accurately interpretation agency of.the administrative Music, legislative purpose.” the Inc. Mills administering the in charged with statute 153, 164, Snyder, v. 105 S.Ct. question.2 (1985) 83 (quotation L.Ed.2d 556 and recognize judiciary “the is While we that omitted). If footnote the words of the stat- statutory final of of con- the arbiter issues unambiguous, inquiry ute are our is at an struction, agency’s an administrative inter- end, plain must meaning and the of the text charged pretation of a statute it is with be enforced. v. Ron Pair United States administering is substantial defer- accorded Enters., Inc., 235, 241, 489 109 S.Ct. U.S. Lujan, Ass’n v. ence.” Seldovia Native 103 L.Ed.2d 290 Cir.1990). (9th We 904 F.2d 1342 say plain cannot We there is of our thus stress the limited nature review meaning phrase suitable the of the of the Service’s statu- personal for use residence” it tory language. should disturb “[W]e intent of leaves no room for doubt as to the appears statute its unless it from the or can Congress. itself history The word “suitable” legislative that the accommodation upon many meanings depending take on that sanc- not one doing the Shimer, end 367 the in view and the individual tioned.” United v. States dd(a)(l) provides Kamps’ reject argument Code that at the the of the United States We outset by authority refuges administered did the all "wildlife ... shall be that the Service not have n language. Secretary through States Fish interpret statutory the the United the life use Sec- Thus, supplies provides "[p]rior the Act and 6 of the Act that Wildlife Service.” tion thereafter, authority in- refuge and' Service with the establishment terpret provision. Secretary lands, waters, apply the life estate shall administer [of Interior] provision acquired life estate therein interests Service’s construction interpretive sub- refuge rule and is not with the National constitutes an accordance System ject rulemaking requirements. See Refuge Administration Act of the APA’s Wildlife Schweiker, (9th dd-ee)." (16 704 1098 Powderly F.2d U.S.C. Pub.L. No. 97- v. § 668 Cir.1983). 96 Stat. 1624. Title viewing. applied “Suitable” as proper- to a Shimer, tioned.” 367 U.S. at ty owner occupant might include consid- at 1560. erations such as whether a structure has The Service’s interpretation finds also inside plumbing, roof, a sound room to some support legislative history. about, air, light move and sufficient United States State Washington, 872 integrity to protection assure reasonable (9th Cir.1989)(where F.2d text is against the elements. A governmen- local ambiguous, may resort properly had to be entity responsible tal for land use in the Indeed, history). point at one might area be more interested in additional explicitly that, Senate states “a such typically factors as those taken into structure ais residence when it issuing consideration in building permits. has been constructed in accordance with To the federal agency responsible for im- residential permits issued Act, plementing the other might concerns appropriate county authority part or is legitimately assume importance. For ex- the county assessor’s determination of the ample, the might Service consider “suitable property’s assessed ‘improved’ value as an use as a only residence” those property. persons The mere fact sleep that have little adverse in the environ- structure on nights year some each impact. short, mental insufficient text to render a ‘per- structure *5 ” gives little basis sonal choosing among for residence.’ vari- Senate No. alternatives, 97th Cong., ous 2d and the word Sess. 4 “suitable” is ambiguous. recognize We parts that other legislative history contradict the Service’s against purpose Viewed the of the stat interpretation. task, It is not our however, ute, ambiguous the term “suitable” takes glean legislative from the history the on the flavor of something that is consist “best” or convincing” “most interpretation. ent a remaining structure on the Is The Service has construed the statute to being occupied land and disrupting without mean for a that structure to be “suitable or impairing preservation the of the natural personal for use as a residence” it must habitat. See Bob Jones Univ. v. United pursuant been built to local building States, 574, 586, 461 U.S. 103 S.Ct. permits. interpretation This plausible is (in (1983) 76 L.Ed.2d 157 construing given text, the statutory the his- ambiguous phrase an in a statute a court tory, purpose “ and the of the statute. should ‘take in connection with it the sum, say we cannot that the Service’s inter- objects whole statute ... and poli the and pretation is “unreasonable” though even cy ”) (quoting of the law’ Brown v. Du might we believe interpretation another is chesne, (19 How.) 183, 194, 60 U.S. 15 L.Ed. just reasonable, as perhaps more reason- (1857)). 595 A structure “suitable for use able. See Federal Election Comm’n v. as a residence” in this context Democratic Campaign Senatorial may, example, be a structure which has Comm., 454 U.S. at 102 S.Ct. at 46. appropriate facilities, sanitation materials Kamps argue also that even if which will not have an impact adverse the Service’s of the statute is the environment as the structure is used upheld, the district in finding court erred occupied and years, over the appropriate that the building permit the ground to the connection and a method for trailer on Lot 3093 had not been issued. handling water runoff so not concen trate the flow of surface waters a man trial, At Kamps presented the evidence ner will erode damage or otherwise that it was the suggesting Coun- Jefferson interpreta environment. The Service’s ty practice require auditor’s routine tion of the term “suitable” with reference applying septic permit individual for a tank requirement building of a permit building permit. a first receive Because plausibly furthers Kamps these ends. The permit septic tank had been obtained for have not shown that this “accommodation Kamps the trailer on Lot argue it is one that have sanc- should be presumed building per- that the

703 Music, Snyder, Inc. v. issued, even Mills 469 U.S. was also this structure mit for 638, 645, copy 83 L.Ed.2d 556 provide of a though they cannot (1985) omitted). (quotation & footnote building permit. plain, Where “the statute’s ‘the contrary, to the evidence “Absent of the courts is to enforce it sole function ordinary is that the presumption applicable ” United States v. according terms.’ to its was followed and that of business course Enters., Inc., Ron Pair 109 obeyed; duty also that official law was 1026, 1030, (1989) 103 L.Ed.2d 290 S.Ct. faithfully performed.” regularly was States, 242 v. United Caminetti (quoting Washington, States State 233 United 470, 485, 37 S.Ct. 61 L.Ed. U.S. (9th Cir.1956). Even assum- F.2d (1917)). however, ing, Kamps that the are entitled dictionary place to determine presumption, the dis- is the to the benefit of this plain meaning finding ordinary that of the stat- trict court did not err in utory suitable for use as building permit pre- never issued. The terms Foxgord, residence.” See is not an sumption describe Instead, commonly simply F.2d at 1032. “Structure” one. it shifts irrebuttable “[tjhat which is or con- going forward defined as built to the Service burden structed; demonstrating that no an edifice or with evidence 1' Dictionary (5th kind.” Black’s Law presented at The Service was obtained. 1979). to show is defined as trial sufficient evidence ed. “Suitable” “[f]it view.” question easily here was cir- appropriate “routine” in for the end Notwith- ignored. generally and often cumvented at 1286. “Residence” is defined See, presumption, the district standing dwelling place or habitation. building permit was Dictionary New finding that no e.g., World court’s Webster’s *6 on the any the structures (2d 1984). combining of By issued the defi- 1209 ed. clearly is not erroneous. Kamps’ terms, statutory lots nition of the above phrase suitable for use as court judgment The of the district plainly means residence” AFFIRMED. plain in. building is fit to dwell This which suggest imply per- meaning does not dissenting: LEAVY, Judge, Circuit requirement. mit majority’s disagree I with Because legislation is con- plain meaning of phrase that “struc- conclusions both “except in rare cases clusive tures, as a resi- [in which] suitable for use pro- will application literal of a statute ambiguous and that Secre- dence” is odds with demonstrably at requiring a duce a result interpretation thereof as tary’s Ron Pair reasonable, of its drafters.” respect- I the intention building permit was Enters., (quotation omit- at 1031 109 S.Ct. fully dissent. Trading Commodity Futures ted). See every involving starting point in case Inc., P.I.E., 725 F.2d Comm’n v. 853 is the a statute construction of (9th meaning conclusive un- Cir.1988) (plain defined, otherwise language itself. Unless reading the statute less “a literal by Congress should be selected the words the stat- purposes of underlying thwart the ordinary, meaning. common given their result”). utory to an absurd scheme or lead Hischemoeller, F.2d v. 820 Foxgord That here. is not the case denied, Cir.), cert. (9th 1032 the Secre- Congress ordered expressly “In L.Ed.2d 502 98 subject certain appropri tary acquire to offer to statute it is construing a federal “in reservations life use ordinary meaning to extended and ate to assume that impact of Federal Congress employed accu order to lessen the [ac- that owners.” Protec- quisition] present legislative purpose.” on the rately expresses the State, Ecology, Dep’t Wash. 34 Anderson v. Washington appellate has included court 1. A (1983) (quotation dwelling” App. omitted). 1281 664 P.2d placed use as a on land for trailer "[a] "structure.” See the definition of within Act, tion National Refuge Island Wildlife provision tend that apply this pop-up 97-333, 4(b)(1), Pub.L. No. campers 96 Stat. or other small trailers that (1982) (the “Act”). Congress clearly felt serve camps mobile as but rather “subject to such terms and conditions those trailers which contain the essential id., Secretary as the necessary,” deems components residence, of a such such would be compatible use kitchen facilities, and bath and which purposes for refuge which the estab- was could be considered as prop- taxable real lished. There is no indication from erty. by the County, Washing- Jefferson express terms of the Act that life granting ton, taxing authority. persons uses which who own structures The Committee notes there are a num- habitation, are no fit for but for which ber of derelict houses and trailers on the issued, building permits were contravenes island that are not habitable now but Congress drafting intent of the Act. might have been at one time. These pursu- A structure need not be constructed regarded should not be as approved building ant to an permit to be fit habitable purposes residences for the easily dwell in. could provision. this permit requirement in the Act included added). (emphasis There is no evidence itself if that had been its true intent in suggest that a structure “located” permitting life uses. It did do so. property, trailer, such as a must be “con- amply supported This conclusion is pursuant structed” approved to an history. the legislative See Escobar Ruiz permit. (9th INS, Cir.1988) 838 F.2d majority opinion notes, As the there is (en banc) (court may legislative look to the legislative history some developed in the history plain unambiguous to see if the suggests Senate that a re statutory language contrary to the clear- quirement contemplated. See Senate ly expressed legislative intention). The Cong., No. 97th 2d 3-4 Sess. provision “life use” was added to the Act (1982). However, where, here, “possible author, by its Representa- the House of drawn, conflicting inferences” can be “the tives, “to insure that those owners who language of the generally prevails statute have homes on the Island be allowed to use over the history.” String In re them for the remainder of their lives.” er, (9th Cir.1988). 847 F.2d See *7 Cong., H.R. 97th No. 1st Sess. 6 Eagle-Picher Indus., Inc. v. United States (1981). The House believed that such level EPA, (D.C.Cir.1985)(stat 759 F.2d “compatible of use would be preserv- utory language controls where it conflicts ing the bird life on the Island.” Id. The portion with one history). approved Senate thereafter pro- life-use statutory language suggest does not vision without amendments. imply permit requirement in for order legislative history supports also provision Moreover, apply. the life-use to plain meaning of the statutory language “plainly wrong regard it is ... to commit and the conclusion that it Con- reports tee as drafted more meticulously gress’ to require- intent include a reflecting and as congressional will ment. The House Committee pro- accurately statutory more than the text vides: reports itself. Committee ... do not em body

The Committee Merchant Congress Marine the law. ... on [on votes intentionally words, has used the expres not on different Fisheries] “located,” term rather than packaged “construct- sions reports.” committee ed” because it intends Reagan, trailers Abourezk v. 785 F.2d (D.C.1986), which are suitable use aff'd, n. 11 for included, (1987).2 residence Therefore, should be this 98 L.Ed.2d provision. The Committee not in- statutory language does clear controls. Report's permit requirement prior passing 2. The Senate knew also the Act that Jefferson portions Congress County imposed building contradicts other of the Act. had moratorium adopted by The restrictive opinion is in- majority and the

the Service express statutory man- with the

consistent broadly ordered the Secre- Congress

date. subject acquire the land

tary to offer contained a struc- where

a life use a whole in. If fit dwell

ture limit life exclude trailers or meant to

had built in accordance only structures

uses easily it could permit,

with a ef- inserting language to that

done so to. Act It chose not itself.

fect in for a

Accordingly, I the case would remand whether, the lack of despite

determination Kamp are

building permits, the for use as personal

“suitable residence[s]” the Act. meaning

within BOWIE; Gregory, L. George P. William Walleck, Stanard, Shane & Sta- Roger L. Plaintiffs-Appellants, Hills, Cal., nard, plaintiffs- Woodland appellants. COMPANY; INSURANCE The HOME Bodkin, Lieb, McCarthy, Sar- G. William Company, England Insurance New Cal., Smith, Jeffrey A. Angeles, gent & Los Defendants-Appellees. Keaster, Charlston, and Robert Charlston Cal., Williams, Angeles, Los Revich & No. 89-55723. endants-appellees. def Appeals, States United Court Ninth Circuit. 1, 1990.

Argued and Submitted Oct. 15, 1991. Decided Jan. BOOCHEVER, BEEZER and Before

TROTT, Judges. Circuit

BOOCHEVER, Judge: Circuit Gregory L. P. Bowie William George diversity action California brought this England Insurance Home and New against corporation insurers of Companies, directors, for failure they were respect to indemnify them defend and Thus, imply a re- January 1982.” new residential No Island Protection determin- require the date for quirement Never- building permits were after 1974. issued theless, January Such eligibility back to 1974. ing selected to be rolled determining eligibility for life usurps date for contradicts if to a life use 4(b)(1)(A). entitled landowner was uses—the section clear on the land ... located "structure