FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PRESIDIO HISTORICAL ASSOCIATION;

SIERRA CLUB,

Plaintiffs-Appellants,

v.

PRESIDIO TRUST, a federal

government corporation,

Defendant-Appellee.

No. 13-16554

D.C. No.

3:12-cv-00522-

LB

OPINION

Appeal from the United States District Court

for the Northern District of California

Laurel D. Beeler, Magistrate Judge, Presiding

Argued and Submitted

October 20, 2015—San Francisco, California

Filed January 27, 2016

Before: Sidney R. Thomas, Chief Judge and Stephen

Reinhardt and M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown
2 PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST

SUMMARY*

Presidio Trust Act / National Historic 

Preservation Act

The panel affirmed the district court’s summary judgment

in favor of the Presidio Trust in an action challenging the

Trust’s 2010 update for the Presidio Trust Management Plan

for the area of the Presidio of San Francisco managed by the

Trust, including the proposed 70,000 square feet of new lodge

construction on the Main Post area.

The panel held that the Trust’s 2010 management plan for

the lodge complied with the Presidio Trust Act and the

National Historic Preservation Act. Specifically, the panel

held that construction of a new lodge offset by demolition of

other buildings in the Main Post of the Presidio constituted

“replacement of existing structures of similar size in existing

areas of development” under the Presidio Trust Act. The

panel also held that in settling on the lodge location and

design, the Trust complied with Section 110(f) of the

National Historic Preservation Act, which required the Trust

“to the maximum extent possible . . . undertake such planning

and actions as may be necessary to minimize harm to the

landmark.” The panel did not consider the Trust’s proposed

replacement construction other than the lodge.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST 3

COUNSEL

Deborah A. Sivas, Alicia E. Thesing, Jacqueline M. Iwata,

Joshua W. Malone, Raza Rasheed, Abigail Perri Barnes

(argued), Mills Legal Clinic, Stanford, California, for

Plaintiffs-Appellants.

Sam Hirsch, Acting Assistant Attorney General, Joseph T.

Mathews, Robert J. Lundman, Katherine J. Barton (argued),

Attorneys, Environment and Natural Resources Division,

United States Department of Justice, Washington, D.C.;

Andrea M. Andersen, Assistant General Counsel, Presidio

Trust, San Francisco, California, for Defendant-Appellee.

Elizabeth S. Merritt, Washington, D.C., as and for Amicus

Curiae National Trust for Historic Preservation.

Mark D. Perreault, Norfolk, Virginia, for Amicus Curiae

Citizens for a Fort Monroe National Park, Inc.

OPINION

McKEOWN, Circuit Judge:

This appeal calls upon us to address the future

development footprint of the historical heart of the Presidio

of San Francisco (“Presidio”)—a former military base that is

now a National Park and a National Historic Landmark. Like

the city in which it sits, the Presidio is caught in the middle of

competing forces: on the one hand, a strong commitment to

preservation, and on the other, the inexorable tide of change,

development, and economic pressures.
4 PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST

The area of the Presidio at issue—the Main Post,

sometimes referred to as the focal point of the Presidio—is

managed by the Presidio Trust (the “Trust”), a wholly-owned

government corporation created by the Presidio Trust Act. 

Omnibus Parks and Public Lands Management Act of 1996,

Pub. L. No. 104-333, 110 Stat. 4097 (codified at 16 U.S.C.

§ 460bb app.) (“ Presidio Trust Act” or “PTA”). The Trust is

governed by both the Presidio Trust Act and the National

Historic Preservation Act (“NHPA”). 54 U.S.C.A. § 300101

et seq. (West 2015).1

Under the Presidio Trust Act, the Trust must fulfill the

dual statutory purposes of preserving the historic and natural

character of the Presidio and making the Presidio financially

self-sustaining. PTA §§ 101(5), (6), (7). To meet those

directives, the Trust in 2002 adopted the Presidio Trust

Management Plan (the “Plan”). The Trust amended the Plan

for the Main Post district in 2011 (the “Update”). Among

other things, the Update provided for extensive demolition

and new construction on the Presidio’s Main Post, including

a new lodge, an expansion of the Presidio Theatre, an

addition to the Presidio Chapel, and an archaeology lab.

This appeal is limited to the Update’s proposed new lodge

adjacent to the Presidio’s Main Parade Ground. Labeling it

as a “lodge” is something of a misnomer, because it is not a

single, unitary structure. Instead, the design envisions twelve

buildings totaling 70,000 square feet at a “maximum height

of 30 feet above existing grade,” with each building

connected by “open-air porches” and styled after the historic,

Civil War-era Graham Street barracks that once stood in

1 Unless otherwise noted, all citations to 54 U.S.C.A are drawn from

West’s annotated 2015 edition of the United States Code.
PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST 5

roughly the same location. For simplicity, we refer to this

proposed development as “the lodge.” While the Trust

envisioned the lodge as opening the park to more cultural,

educational, and public uses and contributing to financial

sustainability, critics allege the project contributes to

commercialization of the park and undermines the Main

Post’s historic character.

Central to the appeal is whether the construction of a new

lodge (70,000 square feet), offset by demolition of other

buildings (94,000 square feet) in the Main Post, constitutes

“replacement of existing structures of similar size in existing

areas of development” under the Presidio Trust Act. PTA

§ 104(c)(3). We also address whether, in settling on the

lodge location and design, the Trust complied with Section

110(f) of the NHPA, which requires that the Trust “to the

maximum extent possible . . . undertake such planning and

actions as may be necessary to minimize harm to the

landmark.” 54 U.S.C.A. § 306107. Because the Trust

complied with its obligations under both statutes, we affirm

the district court’s grant of summary judgment in favor of the

Trust.

BACKGROUND

The Presidio has been described as the birthplace of San

Francisco and is noted for its diverse architectural styles and

formal landscapes that illustrate the complex layering of

construction over time. In the mid-twentieth century, the

Presidio began a transition from a fully-functioning military

base to the recreational preserve that it is today, starting with

its designation as a National Historic Landmark District in

1962. In 1994, the National Park Service (“Park Service”)

assumed control of the Presidio from the Army and managed
6 PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST

the property under the Golden Gate National Recreation Area

Act (“Golden Gate Act”), 16 U.S.C. § 460bb et seq. The

Golden Gate Act sought to “preserve for public use and

enjoyment certain areas of Marin and San Francisco

Counties, California, possessing outstanding natural, historic,

scenic, and recreational values, and . . . to provide for the

maintenance of needed recreational open space necessary to

urban environment and planning.” Id. § 460bb. The Act

limited new construction within covered lands to

“reconstruc[tion],” and specifically provided that “[a]ny . . .

structure which is demolished may be replaced with an

improvement of similar size . . . .” Id. § 460bb-2(i).

Not long after, Congress revisited the Park Service’s

responsibility for the entirety of the Presidio, in part out of a

desire to reduce the government’s financial responsibility for

maintaining the park. The result was the 1996 Presidio Trust

Act, which divided the Presidio into two areas (Area A and

Area B) and gave the newly formed Presidio Trust the

authority to oversee, manage, and develop Area B of the park,

roughly eighty percent of the area. PTA § 104(a).2

Specifically, the Trust is required to manage Area B in

accordance with the Golden Gate Act and the Park Service’s

“General Management Plan” for the Presidio, both of which

require protecting the historic character and predominantly

natural setting of the Presidio. Id. At the same time, the

Trust Act imposed a duty to develop a management plan

“designed to reduce expenditures . . . and increase revenues

to the Federal Government to the maximum extent possible.” 

Id. § 104(c). To incentivize the Trust to fulfill this latter goal,

2 The Park Service retained the remaining twenty percent of the park,

denominated Area A, which runs along the coastline.
PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST 7

the Trust Act called for a fifteen-year phase-out of budgetary

support, leaving the Trust responsible for making the Presidio

financially self-sustainable. Id. § 105(b). As of 2013, the

Presidio had achieved financial self-sustainability and no

longer required subsidies from the federal government.

In 2002, the Trust adopted a Plan to fulfill the directives

of the Trust Act. For management purposes the Plan created

seven planning districts. These districts adapted the earlier

planning districts established by the Park Service, and were

“based on each area’s historic uses; jurisdictional boundaries;

human-made features such as roads, fences, and walls; and

natural features and demarcations, including topography and

vegetation.” Each district had a designated “planning

concept” that would guide “future planning and building use

decisions.” Like any part of the Trust’s Plan, these planning

districts and their applicable planning concepts may be

altered at a later date. Amendments to the Plan, however, are

subject to statutory and administrative limitations and may

require, for example, administrative review, public comment,

or consultation with government agencies. PTA §§ 103(c)(6),

104(c).

The Main Post district, number 1, was designated as

“Mixed-Use/Visitor&CommunityFocus,”3 with a vision that

it would be “the heart of the Presidio” and a “focal point for

visitor orientation.” The Plan capped total building area in

the Main Post district at 1,240,000 square feet. It also capped

lodging space in the park at 51,000 square feet.

3 The two adjacent planning districts—the Crissy Field district, number

2, and the Letterman district, number 3—were designated as “MixedUse/Visitor & Cultural Focus” and “Mixed-Use/Office & Residential,”

respectively.
8 PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST

This map outlines Areas A and B (including the seven

planning districts):
PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST 9

Frustrated with the persistent “empty and uninviting” feel

of the Main Post and its failure to achieve anticipated public

visitation, the Trust began to consider a revision to the Plan

as early as 2005. Because the Trust was interested in larger

lodging options than anticipated in the original Plan, the

Update required a formal amendment process, including an

environmental review under the National Environmental

Policy Act (“NEPA”), 42 U.S.C. § 4332, and a formal

consultation under Section 106 of the NHPA.

After several years and multiple iterations of

environmental review, consultation, and public comment, the

Trust released its Update in 2010. The following year, the

Trust documented its decision-making process in a Record of

Decision, and formally adopted the Update on February 23,

2011.

The centerpiece of the Update—and the only component

challenged in this appeal—is the lodge proposal. The

proposal ultimately reflected a scaled-back approach that the

Trust adopted after consultation with interested parties,

including the Park Service, the California State Historic

Preservation Officer, and the Advisory Council on Historic

Preservation.

The twelve small buildings of the lodge, which are

aesthetically modeled after the historic Graham Street

barracks, would be located on and adjacent to the footprint of

Building 34 (a 31,824-square-foot, modern, non-historical

building on the Main Parade that is slated for demolition

under the Update). This parcel is adjacent to the Main Parade

Ground, which the Trust converted from a parking lot to

grassy, open space years ago. This setup is depicted in the

following schematic:
10 PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST
PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST 11

According to the Trust, this mitigated design concept

would greatly increase the public amenities in the Main Post

area while also “strengthen[ing] the articulation of historic

open spaces.” Compared with the Trust’s plans for the lodge

before the proposal went through NEPA and NHPA

consultation, the modified lodge design also does more to

ensure that the “scale, massing, height, and design” are

“compatible with the surrounding historic environment.”

The lodge proposal was part of a more extensive plan

within the Update, which contemplated approximately

146,500 square feet of construction: 24,000 square feet of

already completed construction plus 122,500 square feet of

new construction. The new construction included the 70,000

square feet for the lodge buildings, as well as additions to the

Presidio Theatre, additions to the Presidio Chapel, an

archaeology lab, and incidental new construction.

In its final form, the Update slated approximately 148,010

square feet of buildings for demolition. Of those, 94,000

square feet are in the Main Post planning district.4 As part of

the Doyle Drive Project, the Trust also included another

54,071 square feet of demolition from the nearbyCrissy Field

planning district (Buildings 605 and 606) and Letterman

planning district (Building 1158) in its demolition

calculations. This project will be a “partially tunneled and

covered parkway that reestablishes a connection between

Crissy Field and the Main Post.”

4 This number includes 59,417 square feet of new demolition plans;

32,259 square feet of new demolition (Buildings 204, 231, and 230)

attributable to a related project renovating Doyle Drive; and 2,263 square

feet of already completed demolition.
12 PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST

The proposed construction and demolition projects in the

Update netted out to a negative 1,510 square feet. The

mathematical maneuver of totaling square footage from the

Main Post planning district plus the nearby Crissy Field and

Letterman planning districts meant that the Trust could say

that the Update as a whole led to a net square footage

decrease. Thus, according to the Trust, it met its statutory

obligation because the new buildings would replace existing

buildings of similar square footage.

The Trust rooted its approach in what is termed the

“banking” interpretation of Section 104(c)(3), under which

the Trust could undertake new construction (“replacement”)

so long as the square footage (“similar size”) of the new

construction was offset by aggregate demolition from any

developed part of Area B (“existing areas of development”). 

The Trust explicitly relied on the banking interpretation in

adopting both the Plan and the Update, and it has been the

Trust’s operative theory of new construction authority until

the current litigation.

After the Trust finalized the Update, the Presidio

Historical Association and the Sierra Club (the

“Associations”) filed suit, challenging the Update on the

grounds that the new lodge violated applicable statutes.

On cross-motions for summary judgment, the district

court granted summary judgment to the Trust. The district

court specifically disclaimed any reliance on the Trust’s

banking interpretation of Section 104(c)(3) of the Presidio

Trust Act: “In reaching a conclusion that the Trust acted

within its statutory authority, the court need not decide (and

does not hold) that the Trust can ‘bank’ square footage from

any area of development or one planning district and use it as
PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST 13

it chooses in another area or district.” Instead, the district

court found Section 104(c)(3) ambiguous and held that the

lodge proposal was well within any reasonable interpretation

permitted by the statute.

The district court also held that, whether Section 110(f) of

the NHPA imposes procedural or substantive obligations on

agencies, it could not “see what else the Trust could have

done besides not build the hotel at all.” Finally, the district

court concluded that the Trust complied with NEPA and was

not required to re-circulate its Final Supplemental

Environmental Impact Statement for public comment after

making relatively modest changes to the lodge proposal.

On appeal, the Associations raise claims only under the

Presidio Trust Act and the NHPA—not NEPA—and have

framed the questions on appeal as limited to the lodge

construction.5 The district court had jurisdiction to review the

Update as a final agency action under 28 U.S.C. § 1331 and

5 U.S.C. § 706(2), and we have jurisdiction under 28 U.S.C.

§ 1291. We review de novo the district court’s decision on

the motion for summary judgment. Turtle Island Restoration

Network v. NMFS, 340 F.3d 969, 973 (9th Cir. 2003).

5 The key issue on appeal is posed as follows: “Does the Presidio Trust’s

2010 management plan violate Section 104(c)(3) ofthe Presidio Trust Act

. . . by authorizing approximately 70,000 square feet of new construction

on existing open space in the Main Post?” The second issue under the

NHPA is likewise framed around the legality of the “plan to construct a

new commercial hotel on the Main Post.”
14 PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST

ANALYSIS

I. THE PRESIDIO TRUST ACT

At the center of the dispute over the lodge proposal is

interpretation of Section 104(c) of the Presidio Trust Act. 

This section requires the Trust to “develop a comprehensive

program for management of those lands and facilities within

the Presidio which are transferred to the administrative

jurisdiction of the Trust. . . . Such program shall consist of—

(1) demolition of structures which in the

opinion of the Trust, cannot be costeffectively rehabilitated, and which are

identified in the management plan for

demolition,

. . .

(3) new construction limited to

replacement of existing structures of similar

size in existing areas of development . . .”

PTA § 104(c).

The Trust reads Section 104(c)(3) to permit new

construction in any existing area of development so long as

the new construction is offset by demolition in any existing

area of development throughout the park—i.e., the banking

interpretation. In the course of litigation, the Trust also

advanced a narrower interpretation of the statute that would

permit new construction so long as it is offset by demolition

in the same existing area of development—i.e., what the

Associations term the “banking lite” interpretation. The
PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST 15

Associations take the position that Section 104(c)(3) limits

new construction to replacement of demolished structures

with “buildings of roughly the same size in roughly the same

place”—essentially a building-by-building, or one-up, onedown, approach.

We reject the Trust’s broader banking theory, but agree

that the statute supports a variant of its narrower

interpretation. The buildings scheduled for demolition within

the same Main Post planning district (94,000 square feet)

offset the lodge’s 70,000 square feet of new construction

within close proximity to the demolished structures. We

therefore hold that the lodge proposal qualifies as a

“replacement of existing structures of similar size in [an]

existing area[] of development.” PTA § 104(c)(3). Because

the lodge is the only new construction at issue in this appeal,

we need not concern ourselves with the calculations related

to the remaining demolition and new construction contained

within the Update. Nor do we explore the outer limits of

what is permissible under the statute.

Our reasoning rests on the familiar Chevron analysis

because the Trust is a government entity with statutory

authority to make binding policy regarding Area B of the

Presidio. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,

Inc., 467 U.S. 837, 842–43 (1984); High Sierra Hikers Ass’n

v. Blackwell, 390 F.3d 630, 648 (9th Cir. 2004) (treating the

precedential value of an agency’s statutory authority as

determinative of whether Chevron applies). Under Chevron,

we look first to the text of the statute to determine whether

“Congress has directly spoken to the precise question at

issue.” Chevron, 467 U.S. at 842. “If the intent of Congress

is clear, that is the end of the matter; for the court, as well as

the agency, must give effect to the unambiguously expressed
16 PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST

intent of Congress.” Id. at 842–43. If the intent of Congress

is not clear, then we consider whether the Trust’s

interpretation is “based on a permissible construction of the

statute.” Id. at 843.

In reaching their preferred, albeit divergent, readings of

“replacement of existing structures of similar size,” both sides

start with the proposition that the statute is unambiguous. Yet

the seemingly simple statute raises more questions than it

answers and we conclude that it is ambiguous with respect to

the scope of the Trust’s authority to undertake new

construction. A dizzying array of square footage figures

offered by the parties hints at deep underlying ambiguity, and

nothing in the plain text of the statute—the common

denominator for the purposes of our analysis—adds any

clarity. See United States v. Ermoian, 752 F.3d 1165, 1168

(9th Cir. 2013) (“We begin, as any effort to interpret a statute

must, with the text.”).

We first consider the Associations’ position that the

statute unambiguously mandates a rough one-up, one-down

principle. This argument fails on a plain language reading of

the statute.

The Associations largely assume that the word size refers

to square footage, but we note that size might also refer to a

building’s volume, height, footprint, scale, massing, or some

combination of factors that are simply not delineated by the

statute and thus inevitably require interpretation and

judgment calls on the part of both the Trust and this court. 

Additionally, the term similar, particularly as part of the

phrase “similar size,” itself evokes a qualitative judgment,

which is anathema to the notion of clarity at Chevron step

one.
PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST 17

The purported plain meaning of the word replacement

does not fare any better. To be sure, the contours of its

accepted meaning limit the realm of possibilities, requiring

that there be a plausible connection between the replacement

and its predecessor. See Oxford English Dictionary (3d ed.

2009) (defining replace as “to provide a substitute for” or

“put an equivalent in place of”). But whatever inherent

limiting effect the word replacement might impart, the

narrow meaning is lost when the word is read in context. The

statute refers to replacement of “existing structures” rather

than an “existing structure.” PTA § 104(c)(3). Thus, this

language does not preclude a building or groups of buildings

from replacing other groups of buildings, making it

increasingly difficult to be sure what must be compared for

similarity, let alone how to compare it.

The ambiguity of this phrase stands out in contrast with

the Golden Gate Act, which employed similar, but far clearer,

language limiting new construction. See 16 U.S.C. § 460bb2(i) (prohibiting new construction generally but allowing

“[a]ny . . . structure which is demolished” to be “replaced

with an improvement of similar size” (emphasis added)). 

Had Congress intended the Trust Act to maintain the same

strictures that governed new construction in the Presidio

under the Golden Gate Act, it presumably would have kept

the singular form, which better supports a one-up, one-down

principle. Schwenk v. Hartford, 204 F.3d 1187, 1201 n.12

(9th Cir. 2000) (“Where limiting language present in earlier

statutes is not included in later legislation, it can be presumed

that the omission was intentional.”).

The Associations acknowledge that the phrase

“replacement of existing structures of similar size” does not

bind the Trust to put new construction in exactly the same
18 PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST

place and make it exactly the same in appearance or even

footprint as the prior structures. They assert only that the

Trust must put new construction “roughly” in the same

location as the demolished building and make it “roughly” the

same size. The Associations further acknowledge that it

might be possible under their interpretation to remove several

buildings and replace them with one new building of similar

aggregate size. This common-sense concession certainly

embraces one plausible reading of the statute, but one can

posit both narrower and more expansive definitions of the

provision’s operative terms, which are inherently abstract and

imprecise. The specificity that Chevron step one demands is

simply lacking here.

The statute also states that the new construction may only

replace existing structures in “existing areas of

development.” PTA § 104(c)(3) (emphasis added). The

reference to “existing areas” would be rendered superfluous

if the provision required the Trust to proceed on a buildingby-building basis, since the building being replaced would

necessarily have been in an existing area of development. 

See Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 1177–78

(2013) (noting that a statutory interpretation that renders

other statutory language superfluous is generally disfavored,

particularly if there is another interpretation that gives effect

to every clause and word of a statute). Reading the phrase

“replacement of existing structures of similar size” in light of

the phrase “existing areas of development” compounds the

ambiguity of PTA § 104(c)(3). In sum, we are unconvinced

by the Associations’ reading of the statute.

Nor are we persuaded that the Trust’s banking

interpretation passes the test at Chevron step one. The claim

that the statute unambiguouslymandates this interpretation is
PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST 19

in considerable tension with the plain text of the statute. Put

literally, the Trust’s reading would have the statute say that

the Trust can undertake new construction to “replicate square

footage (in the aggregate) from buildings demolished in any

area of the park where there is development.” This expansive

formulation essentially reads out plausible, common-sense

meanings of the words replacement and similar size.

At Chevron step one, we determine whether Congress has

spoken to the “precise question at issue.” Chevron, 467 U.S.

at 842. The answer here is no. The statute is unclear. 

Notably, neither side presents a compelling argument for any

definitive, unambiguous definition of what is required of the

Trust. In the end, the most that can be said of the statute is

that it grants some unspecified discretion to the Trust to

undertake new construction projects within certain obscure

strictures.

In the face of an ambiguous statute, under the second step

of the Chevron analysis, we defer to the Trust’s interpretation

so long as it is “based on a permissible construction of the

statute.” Chevron, 467 U.S. at 843. We hold that the Trust’s

expansive banking interpretation is impermissible because it

is “manifestly contrary to the statute.” Household Credit

Servs., Inc. v. Pfennig, 541 U.S. 232, 239 (2004) (citation

omitted).

While the new construction authority granted by the

Presidio Trust Act is indeed capacious, there are nevertheless

limits to what the Trust can read into the Act’s delegation of

authority. Util. Air Regulatory Grp. v. E.P.A., 134 S. Ct.

2427, 2442–43 (2014) (“Even under Chevron’s deferential

framework, agencies must operate ‘within the bounds of

reasonable interpretation.’” (quoting City of Arlington v.
20 PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST

F.C.C., 133 S. Ct. 1863, 1868 (2013)). The key infirmity of

the banking interpretation is that it imposes no discernible

limits on the Trust’s development authority across the

Presidio, and thus would lead to an “enormous and

transformative expansion” of the Trust’s “regulatory

authority without clear congressional authorization.” Id. at

2444. For example, nothing in the banking approach would

prevent the Trust from demolishing all of the buildings in the

Main Post district in order to offset the construction of a highrise condominium complex across the Presidio in the heart of

the relatively undeveloped South Hills area.6 Although the

Trust points to the requirement that the new construction be

in “existing areas of development” to disclaim any power to

use the banking approach to undertake such a project, the

“existing areas of development” language has no limiting

effect where it is statutorily undefined and virtually every

area of the Presidio (and certainly every planning district)

contains at least some development. Even if the banking

theory contained discernible limits, efforts to balance the

“ledger” over time and space, while the Trust juggles multiple

development projects over multiple years, would be a

nightmare in practice. Taken at face value, the Trust’s theory

would render the entire Area B of the Presidio subject to

unspecified development under the Trust Act, so long as

square footage from somewhere (or multiple somewheres)

was replaced with square footage anywhere else in the

Presidio.

6 The Trust argues that in all likelihood it would be prevented from

undertaking such construction by other applicable statutes, such as NEPA,

the NHPA, and the Golden Gate Act. Yet we are required to construe the

Trust Act on its own terms, not in reference to or as part of a constellation

of other independent statutory obligations.
PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST 21

That the banking interpretation would permit unlimited

authority puts it at odds with a major purpose of the Trust

Act—i.e., to implement “sound principles of land use

planning” and “protect[] the Presidio from development and

uses which would destroy the scenic beauty and historic and

natural character of the area and cultural and recreational

resources[.]” PTA § 101(5). That is reason enough to

conclude that the banking interpretation is impermissible. 

See Chem. Mfrs. Ass’n v. E.P.A., 217 F.3d 861, 867 (D.C. Cir.

2000) (holding EPA’s interpretation of an ambiguous

statutory provision unreasonable where it was inconsistent

with the Clean Air Act’s purpose).

Ultimately, any reasoned interpretation of the statute must

account for the diversity of the Presidio’s landscape, the

vastly different levels of development in different areas of the

park, and the historic nature of the park. For instance, the

South Hills planning district is a largely undeveloped natural

area, albeit with some small buildings, while the Main Post

and Letterman planning districts are relatively urban. The

Trust adopted the planning districts in recognition of the

reality that these districts had different “historical uses” and

features. If nothing else, Section 104(c)(3) was designed to

prohibit the wholesale re-purposing of remote corners of the

Presidio that currently feature vastly different characteristics

and disparate levels of development. Yet the banking

interpretation permits just that—the Trust offers no effective

limiting interpretation that would account for the Trust’s duty

to preserve the existing architectural and natural diversity of

the Presidio. The Trust’s banking interpretation cannot pass

muster because it “entirely fail[s] to consider an important

aspect of the problem” at hand. Michigan v. E.P.A., 135 S.

Ct. 2699, 2707 (2015) (quoting Motor Vehicle Mfrs. Ass’n of
22 PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST

United States, Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983)).

In the face of its unsuccessful efforts to persuade the

district court to embrace a broad reading of the statute, on

appeal, the Trust advanced a new, narrower interpretation of

Section 104(c)(3). The Trust asks us to read the statute to

permit construction of new buildings where their aggregate

square footage is offset by demolition within the same

existing area of development. We understand the Trust’s

alternative theory as asserting authority to offset new

construction with demolition in some physical proximity of

the new construction, regardless of the boundaries of the

planning districts. Under this “banking lite” theory, the Trust

argues that the lodge proposal—and, indeed, the Update’s

new construction plans as a whole—are “more than offset[]”

by the demolition in the immediately adjacent areas of

development, including the demolition in the Main Post

Update plus demolition of the nearbyBuildings 605, 606, and

1158 in the Crissy Field and Letterman planning districts. 

The Trust views the three buildings outside the Main Post

planning district as “still within the larger ‘existing area of

development’ that includes the Main Post.”

The Record of Decision, which adopted the Update, is

predicated on the Trust’s banking interpretation. In contrast,

the new “banking lite” theory—advanced for the first time on

appeal in response to the district court’s rejection of the

Trust’s effort to invoke Chevron—is nothing more than a

convenient litigating position. “Congress has delegated to the

administrative official and not to appellate counsel the

responsibility for elaborating and enforcing statutory

commands.” Bowen v. Georgetown Univ. Hosp., 488 U.S.

204, 212 (1988) (citation omitted). The “banking lite”
PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST 23

interpretation is not the product of any considered

development, nor has the Trust’s theory been consistent

throughout the administrative process. Because of the way it

came about and its potentially broad reach, we decline to give

the litigating position any special deference under Skidmore. 

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (“The

weight of [an agency interpretation] will depend upon the

thoroughness evident in its consideration, the validity of its

reasoning, its consistency with earlier and later

pronouncements, and all of those factors which give it power

to persuade, if lacking power to control.”).7

The ultimate question is whether the lodge proposal falls

within the statutory mandate that new construction projects

are limited to “replacement of existing structures of similar

size in existing areas of development . . . .” PTA § 104(c)(3). 

See also 5 U.S.C. § 706(2). We conclude that it does. The

new lodge construction is projected for 70,000 square feet,

while the physically proximate planned demolition within the

Main Post planning district alone amounts to over 90,000

square feet.8

7 Our approach to Skidmore deference vis-a-vis an agency’s litigating

position has varied depending on the factual circumstances. Compare

Alaska v. Fed. Subsistence Bd., 544 F.3d 1089, 1095 (9th Cir. 2008)

(affording no deference to the government’s litigating position) with

Andersen v. DHL Ret. Pension Plan, 766 F.3d 1205, 1212 (9th Cir. 2014)

(affording Skidmore deference to the government’s litigating position);

Price v. Stevedoring Serv. of Am., Inc., 697 F.3d 820, 829–32 (9th Cir.

2012) (en banc) (affording Skidmore deference to the government’s

litigating position).

8 The Trust left open the question of whether it will follow through in

demolishing Buildings 40 and 41, which are located in the Main Post

planning district and were counted in its 94,000 square feet demolition

calculation. Even without these two buildings, which total 16,514 square
24 PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST

As already explained, the term “replacement” is not

confined to a one-for-one demolition/new construction

meaning. Instead, replacement can include, collectively,

construction of more than one structure offset by demolition

of more than one structure, thus giving meaning to the plural

language of “existing structures.” PTA § 104(c)(3)

(emphasis added). Further, treating the “similar size”

restriction as encompassing at least a comparison of the

square footage of the relevant demolished buildings, without

necessarily cabining its meaning to that unit of analysis, ties

the statutory requirements together in a manner consistent

with the statute’s language and purpose. Id. Finally, the

phrase “existing areas of development” should be limited to

development in areas physically proximate to the location of

the building being replaced.9Id. This interpretation

harmonizes all of the elements of the statute. See Boise

Cascade Corp. v. E.P.A., 942 F.2d 1427, 1432 (9th Cir. 1991)

(“Under accepted canons of statutory interpretation, we must

interpret statutes as a whole . . . .”).

feet, the rest of the planned demolition in the Main Post planning district

would still exceed the 70,000 square feet of new lodge construction.

9 Unlike the more sweeping banking theory, this interpretation also

imposes some foreseeable limits on the Trust’s newconstruction authority

that are more in keeping with the purposes of the Presidio Trust Act. The

Trust could not, for instance, undertake isolated new construction in a

remote corner of the park, because it would need to establish physical

proximity to an existing area of development in which the purported

“replacement” was located. This interpretation further reinforces the

purposes of the Presidio Trust Act by allowing the Trust to draw new

construction authority from physically proximate parcels that are already

likely similar in character. It therefore prevents the Trust from

fundamentally re-purposing certain areas ofthe part in one fell swoop, and

generally preserves the architectural, historic and natural diversity of the

Presidio as a whole.
PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST 25

We conclude that the Trust’s Update with respect to the

proposed lodge and the offsetting demolition in the Main Post

area is consistent with Section 104(c)(3). Without doubt, the

proposed lodge is physically proximate to the other Main Post

demolition sites. Each of the buildings being “replace[d]” is

within several hundred yards of the proposed lodge and falls

within a similarly developed area of the Presidio. It does not

matter that there may be more structures than before: the new

buildings still replace the other buildings within the Main

Post planning district. To be sure, there remains some leeway

as to how far the statute extends, especially with respect to

the requirement of physical proximity. But we need not

delineate the outer limits of that extension nor consider

whether proximity is defined by the boundaries of the

planning districts. Although the Trust reached across district

lines to justify proposed construction in addition to the lodge,

that expanded construction effort is not before us. Thus, we

do not reach the question of whether Buildings 605, 606, and

1158 (encompassing 54,071 square feet), which are within

two different, but adjacent, planning districts, legitimately

could be counted to offset other planned construction in the

Main Post. All we decide here is that the lodge construction

and demolition taking place within the Main Post satisfy the

replacement, size, and proximity limitations of Section

104(c)(3).

II. THE NATIONAL HISTORIC PRESERVATION ACT

Because the Presidio is a National Historic Landmark

District, any project that alters the Presidio’s structures is

subject to the provisions of the NHPA. 54 U.S.C.A.

§ 306101. The NHPA imposes two sets of obligations on

federal agencies, depending on the features of the historic site

at issue.
26 PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST

To begin, Section 106 requires an agency undertaking a

project expected to adversely affect a public or private site

listed on the National Register of Historic Places to “take into

account the effect of the undertaking on any historic

property.” 54 U.S.C.A. § 306108. Congress created the

Advisory Council on Historic Preservation (“Advisory

Council”) to aid in the implementation of this task and to

“recommend measures to coordinate activities of Federal,

State, and local agencies and private institutions and

individuals relating to historic preservation[.]” Id.

§ 304102(a)(1). The Advisory Council has promulgated

extensive regulations governing Section 106 consultation. 

See 36 C.F.R. §§ 800 et seq. These regulations require the

undertaking agency to consult with other parties regarding

whether the project poses any identifiable adverse effects, id.

§ 800.5, and to “seek ways to avoid, minimize or mitigate the

adverse effects,” id. § 800.6(b)(1)(i).

A second requirement is that projects affecting

government-owned sites and National Historic Landmarks,

such as the Presidio, trigger the additional statutory

requirements of Section 110, which was added to the statute

in 1980. Pub. L. No. 96-515, 94 Stat. 2987 (1980) (codified

as amended at 54 U.S.C.A. § 306101 et seq.). Section 110

sought to “clarif[y] and codif[y] the minimum responsibilities

expected of federal agencies in carrying out the purposes of

the [NHPA][.]” H.R. Rep. No. 96-1457, at 36 (1980). For

instance, agencies must seek to use historic properties

available to them before embarking on construction or

acquisition, 54 U.S.C.A. § 306101(a)(2), and must develop a

preservation program for federally-owned properties, id.

§ 306102. National Historic Landmarks are subject to the

specific requirements of Section 110(f), which reads, in

relevant part: “Prior to the approval of any Federal
PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST 27

undertaking that may directly and adversely affect any

National Historic Landmark, the head of the responsible

Federal agency shall to the maximum extent possible

undertake such planning and actions as may be necessary to

minimize harm to the landmark.” Id. § 306107.

In discharging its obligations under the NHPA, the Trust

engaged in extensive Section 106 consultation with multiple

parties, including state historical preservation officers, the

Advisory Council, and the public. Ultimately, the Trust

adopted recommendations made by the Park Service and

interested entities to address and mitigate any adverse effects

of the lodge. The Advisory Council and other consulting

parties signed a memorandum of agreement confirming

compliance with the required planning processes. See

36 C.F.R. § 800.6(c).

In light of the extensive compliance efforts under Section

106, the Associations, not surprisingly, do not challenge that

aspect of the Trust’s planning. However, they argue that the

Trust failed to comply with the additional requirements of

Section 110(f). According to the Associations, the Section

110(f) language relating to a) “minimiz[ing] harm to the

landmark” and b) “to the maximum extent possible,” imposes

a heightened substantive standard against which the Trust’s

final decision must be judged.10 We disagree.

10 Section 110(f) goes on to say that the responsible agency “shall afford

the [Advisory] Council a reasonable opportunity to comment with regard

to the undertaking.” 54 U.S.C.A. § 306107. The Associations do not

assert that this portion of Section 110(f) is substantive, and the Advisory

Council’s affirmation in the memorandum of agreement that the Trust had

afforded it an “opportunity to comment on the Undertaking” is in any

event sufficient to satisfy this obligation.
28 PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST

Our court has consistently held that “the NHPA, like

NEPA, is a procedural statute requiring government agencies

to ‘stop, look, and listen’ before proceeding” when their

action will affect national historical assets. Te-Moak Tribe of

W. Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592,

607, 610 (9th Cir. 2010) (quoting Muckleshoot Indian Tribe

v. U.S. Forest Serv., 177 F.3d 800, 805 (9th Cir. 1999)); see

also Lee v. Thornburgh, 877 F.2d 1053, 1056 (D.C. Cir.

1989) (“Our review of the statutory text [of the NHPA]

persuades us that Congress intended these provisions to have

a limited reach; they are aimed solely at discouraging federal

agencies from ignoring preservation values in projects they

initiate, approve funds for or otherwise control.”). Although

these cases do not reference Section 110(f) specifically, they

do post-date adoption of the section.

Section 110(f) cannot be read in a vacuum. It builds on

the general consultation process set out in Section 106, which

the Associations acknowledge is a procedural “stop, look, and

listen” requirement, but sets out a heightened procedural

standard for National Historic Landmarks, calling for

“planning and actions as may be necessary to minimize harm

to the landmark.” 54 U.S.C.A. § 306107. The obligation

referred to is the requirement to “undertake such planning and

actions,” and to do so to the “maximum extent possible.” Id.

Congress often requires agencies to consider a variety of

alternatives on the theory that such consideration makes it

more likely substantive results will follow. See Joseph L.

Sax, The (Unhappy) Truth About NEPA, 26 Okla. L. Rev.

239, 240 (1973) (“NEPA’s obvious, if unstated, assumption

was that by requiring the agencies to explore, consider, and

publicly describe the adverse environmental effects of their

programs, those programs would undergo revision in favor of
PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST 29

less environmentally damaging activities.”). Thus, Congress

may mix substantive language with purely procedural

constraints. Such is the case here: the directive “minimizing

harm to the landmark” to the “maximum extent possible”

reflects what Congress apparently hoped would result from

heightened analysis.

The only other circuit to confront the issue is in accord

that Section 110(f) is not a substantive mandate. In

addressing Section 4(f) of the Department of Transportation

Act, 49 U.S.C. § 303(c), the First Circuit held that “Section

4(f), unlike sections 106 and 110(f) [of the NHPA], imposes

a substantive mandate.” Neighborhood Ass’n of the Back

Bay, Inc. v. Fed. Transit. Admin., 463 F.3d 50, 64 (1st Cir.

2006).11

The legislative history confirms that Congress intended to

impose only a “higher standard for agency planning in

relationship to landmarks before the agency brings the matter

to the council.” H.R. Rep. No. 96-1457, at 38 (1980)

(emphasis added). Indeed, the legislative committee noted

that, “[a]lthough [it] deleted a mandatory requirement that an

agency first determine that ‘no prudent and feasible

alternative to such undertaking exists,’ [it] [did] intend for

agencies to consider prudent and feasible alternatives.” Id.

(emphasis added). As with NEPA, it would be difficult to

interpret this history as suggesting anything other than an

11 The Fifth Circuit has also held generally that NHPA is a procedural

statute. See Coliseum Square Ass’n, Inc. v. Jackson, 465 F.3d 215, 225

(5th Cir. 2006). Although it went on to note that Section 110(f) “imposes

an affirmative duty on federal agencies to minimize harm to National

Historic Landmarks where it finds that a project will adversely affect such

landmarks,” the court did not reach that specific question because there

was no adverse effect. Id. at 243–44.
30 PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST

intent to require agencies to canvass their options with a keen

eye.

We are not persuaded by the argument of amicus curiae

National Trust for Historic Preservation that Congress clearly

intended to model Section 110(f) on another statute that the

courts have interpreted as substantive—Section 4(f) of the

Department of Transportation Act. 49 U.S.C. § 303(c). 

Notably, Section 4(f), while including nearly identical

language about minimizing harm, also includes a very

important qualifier not present in the NHPA, namely that

historic sites may be approved “only if . . . there is no prudent

and feasible alternative to using that land[.]” 49 U.S.C.

§ 303(c) (emphasis added). The First Circuit recognized this

critical difference in declaring Section 4(f) to be a substantive

mandate, in contrast to Section 110(f). Neighborhood Ass’n,

463 F.3d at 64. If anything, Congress’s decision to strip the

mandatory language about exhausting prudent and feasible

alternatives from the bill that eventually became Section

110(f), see H.R. Rep. 96-1457, at 38, is evidence of

Congress’s intent to distinguish Section 110(f) from Section

4(f) of the transportation legislation. Schwenk, 204 F.3d at

1201 n.12.

Although court decisions interpreting other, similar

statutes can be persuasive, our best guide to what this statute

means is the text. The legislative history of Section 110(f) is

icing on the cake. See City & Cnty. of S.F. v. U.S. Dep’t of

Transp., 796 F.3d 993, 998 (9th Cir. 2015) (noting that the

first source to examine is the “plain words of the statute” and

the last is “similar provisions within the statute as a whole

and the language of related or similar statutes” (citations

omitted)); Negusie v. Holder, 555 U.S. 511, 519–20 (2009)

(rejecting an analogy to a holding in a case interpreting
PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST 31

another, similar statute where the language and design of the

statute in the case at hand were distinguishable).

In holding that Section 110(f) does not impose a

substantive obligation, we do not mean that Congress failed

to heighten the procedural hurdles an agency must satisfy

with respect to projects affecting National Historic

Landmarks. The Trust cannot rest on the fact that, by all

indications, it complied with the letter of Section 106. 

Something more was required under Section 110(f). The best

indication of what else was required can be found in the

legislative history, which says that the agency should at least

“consider prudent and feasible alternatives” to avoid adverse

effects. H.R. Rep. No. 96-1457, at 38; see also 63 Fed. Reg.

20,495, 20,503 (Apr. 24, 1998). This obligation stands on top

of the more general duty in the Section 106 consultation

process to “seek ways to avoid, minimize or mitigate . . .

adverse effects.” 36 C.F.R. § 800.6(b). In short, the Trust

was required to thoroughly consider—rather than simply

identify and catalog—prudent and feasible alternatives to its

proposed lodge design and in its planning process.

We are satisfied that the Trust met this heightened

standard within the planning process. The original lodge

proposal changed dramatically over time, from a behemoth

building to a smaller, historically appropriate collection of

buildings. In its 2009 response to the Trust’s plans, the Park

Service recommended that the Trust “[r]educe the footprint,

scale, massing, and height of the proposed lodge; break up the

mass into separate buildings . . . or remove the lodge from the

Main Post.” In response, the Trust broke the lodge into

twelve separate buildings with spaces of ten to twenty feet

between them to preserve visual continuity between the Old

and Main Parade Grounds, reduced the total square footage
32 PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST

from its earlier proposals, and adopted at least a partially

historically integrated design concept.

The Trust also gave consideration to possible lodging in

the existingMontgomeryStreet Barracks buildings, but found

that the project was not feasible at the time. As late as 2010,

in the final stages of its deliberation, the Trust gave extensive

consideration to at least three lodging alternatives in its Final

Supplemental Environmental Impact Statement, none of

which included any new lodge construction.12In the Trust’s

judgment, arrived at through extensive public engagement,

these no-lodge alternatives were insufficient for the purposes

of the Main Post Update. Altogether, the Trust’s thorough

consideration of lodging options in available existing

properties was sufficient to satisfy its obligation to “use, to

the maximum extent feasible, historic property available to

the agency[.]” 54 U.S.C.A. § 306101(a)(2); see also 63 Fed.

Reg. at 20,500 (“[An agency] has an affirmative

responsibility to seek and use historic properties to the

maximum extent feasible in carrying out its activities.”). 

Nothing in the record suggests that the Trust “relied on

factors Congress did not intend it to consider, entirely failed

to consider an important aspect of the problem, or offered an

explanation that runs counter to the evidence before the

agency or is so implausible that it could not be ascribed to a

difference in view or the product of agency expertise.” 

Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d

12 These included: 1) “Lodging in Pershing Hall (Building 42) and

dormitory rooms for visitors in Buildings 40 and 41”; 2) “Lodging in

Pershing Hall and B&Bs in upper Funston Avenue Officers’ Quarters

(Buildings 11-16)”; and 3) “Residences in Pershing Hall and dormitory

rooms for visitors in Buildings 40 and 41.”
PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST 33

1105, 1110 (9th Cir. 2015) (quoting Ecology Ctr. v.

Castaneda, 574 F.3d 652, 656 (9th Cir. 2009)).

The Park Service and the Trust disagreed about whether

the goals of the Update could be accomplished without a new

lodge. The Park Service concluded that a “new lodge at the

Main Post is not the only means to ‘welcome visitors and

animate the Main Parade’” and that “there are other ways to

achieve this goal, such as through rehabilitation of existing

buildings at the Main Post, the establishment of a Visitor

Center, and programs.” Likewise, the Presidio Historical

Association stated that its problems with the Update stemmed

not from a lack of “hard work and creativity,” but from

problems “at the level of the concepts themselves.” But

under the terms of Section 110(f), the Trust was not obligated

to agree with the Park Service’s or the Presidio Historical

Association’s views—it had to give them full and reasoned

consideration, which it did. Indeed, the Trust “incorporate[d]

the majority of the recommendations outlined in the [Park

Service’s] report,” and offered reasoned explanations where

it deviated from the Park Service’s preferred result. The

Trust’s procedural undertakings surely meet the heightened

standard of care imposed by Section 110(f) to undertake “to

the maximum extent possible . . . such planning and actions

as may be necessary to minimize harm to the landmark.” 

54 U.S.C.A. § 306107.

CONCLUSION

Because the Trust complied with the Presidio Trust Act

and the NHPA, we affirm the district court’s grant of

summary judgment to the Trust with respect to the proposed

70,000 square feet of new lodge construction on the Main
34 PRESIDIO HISTORICAL ASS’N V. PRESIDIO TRUST

Post of the Presidio. We do not consider the Trust’s proposed

replacement construction other than the lodge.

AFFIRMED.