your honour's this case is about whether the reconstruction of buildings and wilderness for historic preservation is permitted by the wilderness act congress defined wilderness as areas of undeveloped federal land retaining their primeval character and influence without permanent improvements which is managed and protected to preserve its natural conditions and it specifically prohibited structures and wilderness except as necessary to meet minimum requirements for administration of the area for the purpose of the wilderness act notwithstanding the statutory mandates the park service in this case undertook major reconstruction efforts on five buildings in the olympic wilderness citing broad discretion under cultural resource laws and policies and by attempting to shoehorn the preservation of buildings into the wilderness acts reference to historical use but there's two fundamental problems in this case your honor the first is that these replicas do not serve the purpose of the wilderness act as required by the exception provision and secondly even if we were to set that first problem aside the park service cannot demonstrate that the structures were necessary to meet minimum requirements for administration of the wilderness and your honour's well this court has not addressed whether the historic preservation of buildings serves the purpose of the wilderness act the eleventh circuit has and it specifically found that the need to preserve historic structures may not be inferred from the wilderness act nor grafted onto his general purpose and i'd like to explain today why the eleventh circuit opinion is directly on point to this case and how this court's decision and wilderness watch the fish and wildlife service or the kofa opinion does not preclude your honour's from holding consistent with the well reasoned position of your sister circuit your honour's in the wilderness watch the manila case or the cumberland island case that was before the eleventh circuit the park service was driving parked vehicles across an old dirt road through the cumberland island wilderness to perform restoration work on historic properties located just outside of the wilderness boundary in potential wilderness and to justify the motorized use in that case the park service argued the section eleven thirty three b of the wilderness act allows a wilderness to be devoted to multiple public purposes including historical use and the motorized access was necessary to preserve historic structures which the park service argued can constituted historical use and so the eleventh circuit in that case said that it had to resolve the issue of whether the stork preservation of buildings serves the purpose of the wilderness act and to do that and engaged in a thorough statutory construction analysis to come to its conclusion and it found that given the acts definition of wilderness as an undeveloped federal land retaining its primeval character and influence without permanent improvements and given its explicit prohibitions saying there shall be no structure in any such area it could not agree with the park service that the preservation of historic structures furthers the goals of the wilderness act and secondly the reason that that case is directly on point to the situation here is the eleventh circuit also held that the axe references to recreational scientific educational and historical uses in section eleven thirty three b which are the public purposes tracks the definition of wilderness and section eleven thirty one see which describes  primitive and unconfined type of recreation the problem council and i understand why you're focusing so much on the eleventh circuit case because that's favorable in terms of your view of historical use but we've got to deal with  and pertains to conservation i really don't see an analytical distinction cofa we've already found that there's conflicting policy directives in terms of conservation so why shouldn't that be any different in terms of historical use right i think there's two points of distinction with the kofa case and the first is that the kofa panel did not analyze the term historical use to figure out what that terms the meaning is within the overall statutory scheme and so this panel is not restricted by the kofa holding in undertaking that analysis and we believe the eleventh circuit got that analysis right that given the overall statutory scheme of the wilderness act the term historical use itself right and i recognize that i didn't deal directly with the term historical use but as an analytical matter i just don't see the distinction because when you look at eleven thirty three b and the reference of public park purposes for recreational scenic scientific educational conservation and historical use so i don't see why historical use doesn't produce the same sort of tension that we identified in the case i think it's because the historical use and all of the other public purposes in section eleven thirty three b have to be considered in light of the overall statutory scheme and conservation is different in that regard because conservation efforts in and the kofa case the conservation effort was to conserve a native wildlife species within the wilderness which would be a natural component of the wilderness is different it's more closely tied to the overall purpose of the wilderness active than preserving buildings for the sake of preserving buildings where that underlying purpose is very much at odds with both the overarching purpose the definition of wilderness and the x specific prohibition on structures and so the district quite understand why historical value and historical uses use is in a minimum ambiguous and then we get into skateboard elsa's rather than the kind of analysis you're offering right your honor if the if this panel decides that the statute is clear of course there is no deference to the agency but i don't think the standard of deference is in dispute and it's skidmore deference if the panel determined that the term historical use ambiguous your honor even if this court were to find that that term is ambiguous which we don't believe it is based on the analysis that the eleventh circuit performed the agency still has to show that the structures in this case are necessary to meet minimum requirements for administration of the wilderness and they can't show that for two reasons the first is that the agencies all of the agencies have various alternatives available to them to discharge their obligations under historic preservation laws without offending the wilderness act and there's no restrictive provision in any historic preservation law or any cultural resource law that requires them to rebuild structures inside of wilderness so the agency cannot manufacture a conflict between the statutes in this case we're not exists we have a specific provision in the  assuming that we don't accept the eleventh circuit analysis isn't the historic value of a structure like these particular structures partly related to exactly the location where they exist in the fashion in which they were originally created so how how how can the park service under that analysis do anything other than keep them in in proper condition in their historic location i think the question is still about minimum requirements not the most preferred alternative available to the park service the world in a sack doesn't say for the most desirable administration of the wilderness it says to meet minimum requirements for administration of the wilderness but the mineral carmen here is that  historic value historic use of the two terms that appear right then the minimum requirement would be to administer the area pursuant to the purpose of the wilderness act well but but we have gone one step further in this part of the argument we're assuming that one of the purposes of the wilderness act given the ambiguity which are assuming arguing go is to preserve historical value and historic use define to include structures in that once i know you disagree with those various premises that assuming those premises then doesn't it follow that the historic value is the the interrelationship between these particular structures and their immediate environment i think that the it's still butts up against the presumption that structures are prohibited under the wilderness act and the minimum requirements have to be read in light of that specific statutory prohibition and so i think your honor's question is do they have to preserve these buildings in their current location sitting at the end of the trailhead where they're sitting in the olympic wilderness to meet those minimum requirements to preserve historical values and in this case i don't believe so your honor they could move that structure down the trail had say five miles outside of the wilderness boundary and highlight it there and then they would be preserving historic structures of the olympic national park and of the structure and also be in accordance with the more restrictive provisions of the wilderness act that says there shall be no structure in wilderness and also your argument depends on this panel accepting the argument that historical case analyzed a similar circumstance where he found the historical term historical use ambiguous based on what he perceived he was required to do from the kofa holding and even with that he still found that the agencies had various options available to them to preserve both historic value of the structure and the area by relocating the structure or maintaining photographic photographic evidence of the building and i think all of those alternatives are available in this case regardless of whether your honour's agree with the eleventh circuit on the meaning of the term historical use and your honor i'd like to step back and spend just a little bit more time picking apart the term historical use wilderness watch of course believes the eleventh circuit got it right and that you can reach that conclusion based on a plain reading of the statute but even if this court were to look beyond the plain language of the statute the senate report from one thousand nine hundred sixty three indicates the same conclusion and there it explains how the recreational educational scientific and historic values of wilderness interact with and compliment one another and it says that wilderness hikers and students and scientists alike learn from and enjoy evidence of geological and natural history conservation resource management by natural forces and the inner relationships of various forms of life that legislative history of the wilderness act also indicates the congress was contemplating natural features rather than manmade features when it was discussing the term historical value and historical use in the wilderness act and so your honour's going back to section eleven thirty three b while the wilderness act would contemplate various forms of primitive recreation it prohibits forms of motorized recreation because they are incompatible with the overarching purpose of the act and the acts specific prohibition on motorized use and the same thing would apply to the term historical use it encourages historical uses the natural environment such as being studying enjoying evidences of natural forces at play in the wilderness but the preservation of buildings is prohibited by the statute because the structures are and your honor as i briefly touched on it there is no other statute that conflict in this case and i don't believe that that is in dispute it is clear from this court case law and from other circuits case law that the national historic preservation act is a purely procedural statute and it does or does have restrictive provisions that apply in a wilderness but it simply requires the agencies to consider the impacts  federal actions on historic properties before they take those actions and to allow the advisory council an opportunity to comment and what that meets those procedural requirements it's afforded right discretion to take or not take a variety of preservation actions  such as the examples i've already provided to your  honor's and the second i want to jump forward again to the minimum requirements consideration if this court has trouble with the first issue the second issue the second point that the structures a necessary to meet minimum requirements for the administration of the area is made clear in this case because the park service admits that it has not made a finding a necessity for any of the structures in this case it instead claims that it  made a placeholder determination to prevent the loss of the structures so that it can determine later in its wilderness stewardship planning process whether it's going to retain the structures and so it is admitted that it's still considering whether it's going to remove the structures from the current location and relocate them to another area let them degrade in their current location or take any other alternatives that they have available to   goes there there was various options available to the park service under either of those interpretations for preserving the structures in this case your honor because the park service park services actions cannot be justified by the narrow administrative necessity exception in this case and because no other statute requires the actions taken here wellness watch requests this court reversed the district court's opinion  him about five minutes the fact that mr beck told it is here on behalf of his clients i think in part illustrates the profound difficulties in administering wilderness under this  really interesting and difficult to administer it minister statute and important statute maybe one place for me to start is is on the on the case law that my colleague referenced the eleventh circuit cumberland really is about the motorised transport i mean the judge park it explains in her opinion what the park service was doing was piggybacking transport in a fifteen passenger van from for a visitor to the wilderness on the on the basis of this historic preservation work and i think that the court looked at that and saw the moral lessons pretextual and the and as the court says in its own precise language the case turns on this motorized use which for which there is always going to be a high standard under the wilderness act and the discussion of historic use and purpose in that decision i would say  and thoughtful opinion and you will moto which is the glacier peak fire tower i think it's important to note in this is very clear on page twelve zero seven of of judge lane this decision and it's also clear from the opinion itself that structure was not eligible for listing in the national register of historic places and it really important to judge current hours decision in that case right is that he understood that there was a tension between those purposes and that's the fundamental holding of this court in copa that that the wilderness act expressly references an eleven thirty three b these other purposes including historical use on this point i think it's clear that the plain language and the use of context i beg with my debate to differ with my colleague really suggest that this is about how we all generally understand history as being human history and the environment and that the wilderness act would nod to that is hardly surprising after all the act hawke's about primitive recreation and the act itself was advocated by people who win to the wilderness who found profound value in those environments and sought to preserve for future generations that opportunity to experience wilderness in the manner that they had congress and intended to limit this to natural history they could have used that very common everyday term natural history but they didn't i completely agree i think that read as a whole as we must the text of the statute i clearly understands human history is being part of the landscape and you know wilderness administration is difficult it's difficult for those folks like my client who is charged with with administering this incredibly popular park under the strictures of this act eight hundred seventy seven thousand acres of the park of some nine hundred twenty or wilderness but people have to have access trails have to be maintained there are these five qualities of wilderness that the managers are looking at and they are assessing their management decisions mindful that there will be tradeoffs in these fire wilderness qualities right now untrammeled nature of the wilderness net existence of natural processes the fact that it's undisturbed the opportunities for solitude and these other purposes which is the minimum the minimum requirements worksheets make plain in this case which are our extensive documents and demonstrate a thorough and robust look at these issues they are assessing those trade offs informed by the use of history in the act itself the commands of the of the n h p a the historic sites act significantly and not mentioned by my colleague the national park service organic act which the park service manages under preservation mandate that makes it different from other wilderness managers like the forest service bureau land management fish and wildlife service and at the turn of the last century when when when the congress gave park service that mandate considering possibly moving these structures out of the wilderness area and why shouldn't they have to fish or cut bait on that issue before they're allowed to go in and bring in helicopters in the whole business ya know i think your honor that it's a very good question and i want to address that head on i think what my colleague is relying on there is a colloquy between government counsel and judge layton and the transcript pages i believe are in their supplemental excerpts of record and in that colloquy which largely relates to the fact that the park service for this park is working on an overall wilderness plan there are some the the the colloquy indicates that the fact that these five structures are going to be repaired and maintained and language is important here and my colleague respectfully refers to replicas but that's not what is that issue here this is repair and maintenance of these structures and that that in the future under a wilderness play on the way that these issues are going to be assessed may be different and we'll be informed you know by the state of the law and the like at the time that the plan is finalized but that's not to say that for i mean these structures these five structures have been repaired and and that was the decision the final action of the of the agency that's what it's at issue here they're not going to propose down the line breaking them down and moving them elsewhere in this idea about structures being moved i think is really important real relates to the you recall that if you go to the decision in any way moto that fire towers are not eligible for a listing on the federal register well i don't i completely agree with my colleague that the n h p a is a procedural statute but as this court  s from its experience with the national environmental policy act procedural statutes sometimes have a lot of thresholds a lot of hurdles create a lot of work for the agency and for for for of the for these structures that are eligible or listed on the national register for them to move though outside of the wilderness boundary that implicates the processes of the n h p a because that is an adverse effect on a store property for exactly the reasons that you set forth earlier jittery cough which is part of their historical character is the location the way they're built into the fabric of the surrounding landscapes to give you one example the canyon creek shelter sold the trail very accessible shelter within the park less than a mile from from from a parking lot really it's a built by the civilian conservation corps in a rustic style i intended to blend into the landscape to move that shelter out of that way and scape and put it somewhere else it deprives it of the hot that integrated fabric that makes it eligible and it is listed on the national register because of that particular context but even beyond that it would be an adverse effect to these structures not true of the fire tower and you will moto but true for these structures here i mean this is an instance where the wilderness where the park is part of their will or nurse management is tailoring their there are repair and maintenance and stabilization of these structures consistent with historic preservation laws and again it is true that nothing requires them to repair these structures and it is undoubtedly true that some of these structures may not be a repair depending on particular circumstances you'll see that both the that there was a difference between the original complaint and in the amended complaint in the my colleague's excerpt the record and that's because one of the shelters dropped off i mean the the shelter was destroyed in the park service and the decision that they're walking away from restoring that each of these is a contest still decision and i want to talk about the the as necessary to meet minimum requirements for the administration because i think i i will and this case the watch was really right your honor and his analysis about the steps as reflected in the administrators record about the necessity the minimum needs there is a great  taken on the part of the agency in terms of its duty to wilderness stewardship and the history its historic preservation mission we've got the argument all right i'm going to give my colleague a few minutes historic value add to the wilderness characteristics of the evans wilderness and i think there are two answers that question that are important one of the less often cancer and second a legal answer and philosophically i think it's important to look back at why we protect wilderness in the they also recognized that wilderness was very important to us as an american people you know going back you know kentuckians said there are truly wild places still left when congress is still in session well so getting back to to the weather tech what they recognized is the one we needed to protect these wild places but also that these wild places were important to us culturally and so going back tens of thousands of years the native americans who lived in these lands and have an incredible amount of history tied up into them and even to when the europeans came we always as americans had this sense of there was a wilderness out there and there is a front here and a pint and a pioneering spirit and you can see this just based on the the stories we tell our children from the earliest ages whether it's you know johnny appleseed going into the wilderness to plant trees or lewis and clark exploring the louisiana purchase or pioneers going west on the organ trail there has always been part of us tied up in wilderness and so what congress did when it passed the wilderness act is it wasn't just setting aside these large resources of land for environment protection it was also protecting part of our culture and who we are in our history and allowing our children to go into these places and experience what it was like a hundred years ago to go into cabins in the living national park and realize what was for their grandfathers who were the first generation of americans to experience national parks and that is what is protected by the wilderness act and so philosophically there is nothing improper or at ots about protecting the historical places and wilderness because we as americans have always been part of the wilderness and you know preserving that is in and portico of the acts and then the second answer you know the legal answer which is where we talk about is that if you take the wilderness act and it's operate stats you and you look at it every place where you would expect historical preservation to appear if it was a goal the act it appears so if you look at the definition of wilderness it's defined to include objects of historical value if you look at the defined uses it includes use of historical uses we talk but then you know the important player part important role the national park service place is also preserved in eleven thirty three a three where it instructs the national park service whose mission is in part from the organic act to protect objects of historical value it says do not lower any of your historic preservation standards here so it's the position of the national trust don't have any questions thank  seventy two one seventy one those are the premier preliminary draft alternatives for the wilderness stewardship plan and the second point that i'd like to make is that these are largely replica structures that have been built in this wilderness the wilder structure only had ten percent of the building that was salvageable that was completely collapsed that is indeed a replica structure the canyon creek and the elk lake structures have been crushed by trees on multiple occasions and rebuilt  on multiple occasions and in many of those instances they were rebuilt using helicopters and motorized tools and gas powered drills and these are things that have occurred on multiple occasions within the wilderness and those uses are also prohibited under section eleven thirty three c and so the impact of rebuilding these structures beyond the impact from the structures themselves includes all of these peripheral uses that are generally prohibited by the wilderness act and i think that that demonstrates the general and compatibility with wilderness in preserving these structures in the long term as well the third point that i'd like to make your honour's is that section eleven thirty three b says that  those public uses are contemplated except as otherwise provided in this act and the other provisions in this act specifically say that there shall be no structure and wilderness and the definition of older ness defined wilderness is undeveloped federal land without permanent improvement and so at the time historical use in section eleven thirty three b have to be read in context of those other provisions and the last point that i'd like to make your honors as i appreciate the passion that has been expressed by all of the parties in this case and the passion for preserving historic structures modernist watch appreciates the passion but the landscape that the interveners and the park service are attempting to preserve in this case is the landscape that's been permanently marked by man and permanently claimed by man and that is not the landscape that congress intended to protect under the wilderness act congress intended to protect an older part of our history when it acted the wilderness act it's increasingly difficult in this country to find places where somebody can walk for miles without encountering a building and where they can  experience the primeval landscape as it wasn't in the beginning before man started manipulating that landscape with permanent structures and there are over one point four million individual buildings sites and objects listed on the national historic register and the agencies have various alternatives as i mentioned for preserving those think looting relocating the few that are located inside wilderness to areas outside and in the olympic wilderness the roughly forty thousand acres of parkland outside of the wilderness boundary what the park service could relocate these structures if it wished to highlight them there is no option for relocating the very small percentage of land that congress set aside as welder ness and wilderness watch us this court to protect this unique and increasingly threatened piece of our history as congress intended thank your honour's thank you very much counsel both sides the matter submitted for decision