Case: 15-15695, 12/12/2015, ID: 9790262, DktEntry: 22-1, Page 1 of 6

Case No. 15-15695

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUITCENTER FOR BIOLOGICAL DIVERSITY, TURTLE ISLAND RESTORATIONNETWORK, JAPAN ENVIRONMENTAL LAWYERS FEDERATION, SAVE
THE DUGONG FOUNDATION, ANNA SHIMABUKURO, TAKUMAHIGASHIONNA, and YOSHIKAZU MAKISHI,
Plaintiffs-Appellants,v.
ASHTON CARTER, in his official capacity as Secretary of Defense; and theUNITED STATES DEPARTMENT OF DEFENSE,Defendants-Appellees.
On Appeal from the United States District Court
for the Northern District of California

UNOPPOSED MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN
SUPPORT OF PLAINTIFFS-APPELLANTSELIZABETH S. MERRITTWILLIAM J. COOK
National Trust for Historic Preservation
2600 Virginia Ave., NW, Suite 1100
Washington, DC 20037
Tel: 202-588-6035; Fax: 202-588-6272
E-mail: emerritt@savingplaces.org
wcook@savingplaces.org

BRIAN R. TURNER
San Francisco Field Office,National Trust for Historic Preservation
5 Third Street, Suite 707
San Francisco, CA 94103
Tel: 415-692-8083
E-mail: bturner@savingplaces.org

Counsel for Amicus Curiae National Trust for Historic Preservation

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In order to assist this Court in resolving the issues presented in this case, theNational Trust for Historic Preservation in the United States (“National Trust”)
respectfully moves this Court for permission to participate as amicus curiae. 1 Ifleave to participate is granted, the National Trust would file an amicus brief insupport of Appellants urging reversal. The National Trust’s brief would address theissue of standing, with a specific focus on “redressability” of harm arising fromviolations of the National Historic Preservation Act (“NHPA”). The district court
ignored applicable case law in reaching its decision—including important Ninth
Circuit precedent—which the National Trust’s amicus brief would highlight.
INTERESTS OF THE AMICUS CURIAE
The National Trust for Historic Preservation is a privately funded nonprofit
organization, chartered by Congress in 1949, to further the historic preservation
policies of the United States, and to “facilitate public participation” in thepreservation of our nation’s heritage. 54 U.S.C. § 312102. The National Trust’smission is to provide leadership, education, and advocacy to save America’s diverse
historic places and revitalize our communities. In addition, the Chairman of the1

Pursuant to Ninth Circuit Rule 29-3, counsel for the National Trust contacted
counsel for all parties to advise them of the National Trust’s interest in filing thisamicus curiae brief. Counsel for all parties consented to the filing of an amicus
brief by the National Trust, on this date, to address the issue of standing. Although
the National Trust requests leave to file this amicus brief beyond the date on whichthe brief would otherwise be due, counsel for all parties, including Appellees, havespecifically consented to the timing of this filing.
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National Trust has been designated by Congress as a member of the federal
Advisory Council on Historic Preservation, an independent federal agency
responsible for overseeing compliance by other federal agencies with the NHPA.
Id. § 304101(a)(8). As a member of the Advisory Council on Historic Preservation,
which advises the President and Congress on historic preservation policy, theNational Trust is in a unique position to assist the Court in interpreting the NHPA,including Section 402. The National Trust has a profound interest in ensuring thatfederal agencies engage in meaningful compliance with the NHPA. The requirementthat federal agencies “take into account” the effects of their undertakings, prior tomaking decisions, is one of the primary administrative contexts in which theNational Trust serves as an interested party and an advocate.
With approximately 800,000 members and supporters nationwide, theNational Trust works to protect significant historic sites and to advocate historicpreservation as a fundamental value in programs and policies at all levels ofgovernment. This includes challenges to legal decisions that have the effect ofundermining or circumventing preservation laws, including the National HistoricPreservation Act, the statute involved in this appeal.
In carrying out its mission, the National Trust has participated as a party oramicus curiae in hundreds of cases in federal and state courts since 1970, including
a number of cases involving standing and “redressability,” which this brief would3

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address in detail. With respect to this case, the federal district court’s decision
undermines existing precedent on “standing” to enforce the NHPA, which theNational Trust has worked for decades to develop, and which preservation plaintiffs
rely on to enforce agency compliance with the law.
The National Trust has a strong track record helping to persuade federal
courts of appeal to reverse incorrect standing decisions from federal district courts.
See, e.g., Sierra Club v. Jewell, 764 F.3d 1 (D.C. Cir. 2014); City of Jersey City v.
Consolidated Rail Corp., 668 F.3d 741 (D.C. Cir. 2012); Lemon v. Geren, 514 F.3d1312 (D.C. Cir. 2008); Pye v. U.S. Army Corps of Engineers, 269 F.3d 459 (4th Cir.
2001); and Tyler v. Cuomo, 236 F.3d 1124 (9th Cir. 2000).2 The National Trust’s
amicus brief will discuss these cases in more detail.
IMPORTANCE OF AN AMICUS CURIAE MEMORANDUM AND
ITS RELEVANCE TO THE ISSUES BEFORE THE COURTThe Court’s decision in this case has the potential to set important precedentfor how and when federal agencies comply with their responsibilities to take into
account effects on historic resources under the National Historic Preservation Act,including, but not limited to, the Department of Defense. The National Trust’s
experience in helping to develop case law on issues related to standing andredressability is directly relevant, therefore, to the issues before the Court.
2The National Trust also participated as amicus curiae in Vieux Carre Property
Owners, Residents & Assoc’s, Inc. v. Brown, 948 F.2d 1436 (5th Cir. 1991), which
was relied on by this Court in Tyler v. Cuomo.
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CONCLUSION
For the reasons stated above, the National Trust respectfully requests that thisCourt grant it leave to file the amicus curiae brief submitted contemporaneouslywith this Unopposed Motion.

Dated: December 11, 2015

s/Elizabeth S. Merritt
ELIZABETH S. MERRITTWILLIAM J. COOK
National Trust for Historic Preservation
2600 Virginia Ave., NW; Suite 1100
Washington, DC 20037
Tel: 202-588-6035; Fax: 202-588-6272
E-mail: emerritt@savingplaces.org
wcook@savingplaces.org
BRIAN R. TURNER
San Francisco Field Office,National Trust for Historic Preservation
5 Third Street, Suite 707
San Francisco, CA 94103
Tel: 415-692-8083
E-mail: bturner@savingplaces.org
Counsel for Amicus Curiae
National Trust for Historic Preservation

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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of theCourt for the U.S. Court of Appeals for the Ninth Circuit by using the appellate
CM/ECF system on December 11, 2015. I certify that all participants in the case areregistered CM/ECF users and that service will be accomplished by the appellate
CM/ECF system.

Dated: December 11, 2015/s/ Elizabeth S. Merritt
ELIZABETH S. MERRITTWILLIAM J. COOK
National Trust for Historic Preservation
2600 Virginia Ave., NW; Suite 1100
Washington, DC 20037
Tel: 202-588-6035; Fax: 202-588-6272
E-mail: emerritt@savingplaces.org
wcook@savingplaces.org
BRIAN R. TURNER
San Francisco Field Office,National Trust for Historic Preservation
5 Third Street, Suite 707
San Francisco, CA 94103
Tel: 415-692-8083
E-mail: bturner@savingplaces.org
Counsel for Amicus Curiae
National Trust for Historic Preservation

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