F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

P R E S I D I O H I S T O R

I C A L A S S O C I A T I O N ; S I E R R A C L U B , Plaintiffs-Appellants

,

v

.

P R E S I D I O T R

U S T , a federal
g overnment corporation,

Defendant-Appellee

. N o. 13-16554

D.C. No. 3:12-cv-00522- L B

OPI NI ON

A ppeal from the United States District Court for the Northern District of California L aurel D. B eeler, Mag istrate J udg e, Presiding

Arg ued and Submitted October 20, 2015—San F rancisco, California

F iled J anuary

27, 2016

B efore: Sidney

R. Thomas, Chief J udg e and Stephen Reinhardt and M. Marg aret McKeown, Circuit Judg es.

Opinion by

J udg e McKeownP R

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SUMMARY *

P r esidio Trust Act / National Historic

P reservation Act

The panel affirmed the d istrict court’s summary judg ment in favor of the Presidi o T r u st in an action challeng ing the Trust’s 2010 update for the Presidio Trust Manag e ment Plan for the area of the Presidio of San F rancisco manag ed by the Trust, including the proposed 7 0 ,000 square feet of new lodg e construction on the Main Post area.

The panel held that the Trust’s 2010 manag ement plan for the lodg e complied with th e P r esidio Trust Act and the National H i s t oric Preservation Act. Specifically

, the panel held that construction of a new lodg e offset by demolition o f

o t h e r building s in the Main Post of the Presidio constitute d “replacement of ex isting structures of similar siz e in ex isting

areas of development” under the Presidio Trust Act. The panel also held that in settling on the lodg e location a nd desig n, the Trust complied with Sec t i o n 110(f) of the National H istoric Preservation Act, which required the Trust “to the max imum ex tent possible

. . . undertake such planning and a ctions as may be ne c e ssary to minimiz e harm to the landmark.” The panel did n ot c o nsider t h e Trust’s proposed replacement construction other than the lodg e.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.P R

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COUNSEL

Deborah A. Sivas, Alic i a E. Thesing

, J acqueline M. I wata, J o s hua W

. Malone, Raz a Rasheed, Abig ail Perri B arnes (arg ued), Mills L eg al Clini c , Stanford, California, for Plaintiffs-Appellants.

Sam Hi r s c h, Acting Assistant Attorney General, J oseph T. Mathews, Robert J . L undman, Katherine J

. B arton (arg ued), Attorney s, Environment a nd Natural Res o u r ces D ivision, United States Department of J ustice, W a shing ton, D.C.; Andrea M. A ndersen, Assistant General Counsel, Presidio Trust, San F rancisco, California, for Defendant-Appellee.

Eliz abeth S. Merritt, W ashing ton, D.C., as and for Amicus Curiae National Trust for Historic Preservation.

Mark D. Perreault, Norfolk, V irg inia, f or Amicus Curiae Citiz ens for a F ort Monroe National Park, I nc.

OP INION

McKEOW

N, Circuit J udg e:

This appea l calls upon us to address the future devel o pment f

ootprint of the h istorical heart of the Presidio of San F rancisco (“Presidio”)—a former military base that is

now a National Park and a N ational H istoric L andmark. L ike the city in which it sits, the Presidio is caug ht in the middle o f

c o mpeting forces: on the one hand, a strong commitment to preservation, and on the other, the inex orable tide of chang e , development, and economic pressures.P R

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The a

rea of the P re s i d io at issue—the Main Post, sometimes referred to as the focal point of the Presidio—is
manag ed by the Presidio Trust (the “Trust”), a wholly -owned
g overnment corporation c r e a ted by the Presidio Trust Act. Omnibus Parks and Public L ands Manag ement Act of 1996, P u b. L

. No. 104-333, 110 Stat. 4 097 (codified at 16 U

. S

. C

. § 460bb app.) (“ Presidio Trust Act” or “PTA”). The T r ust is
g overn e d b y both the Presidio Trust Act and the National Historic Preservation Act ( “NHPA”). 54 U.S.C.A. § 300101 et seq. (W est 2015). 1

Under the Presidio T r u st 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 a d o p t e d the Presidio Trust Manag ement Plan (the “Plan”). The Trust amended the Plan for the Main Post district in 2011 ( t h e “Update”). Among other thing s, the Update provided for e x tensive d emolition and new construction on the Presidio’s Main Post, including

a n ew lodg e , an ex p a n sion of the Presidio Theatre, an addition to the Presidio Chapel, and an archaeolog y lab.

This appeal is limited to the Update’s proposed new lodg e adjacent to the Presidio ’ s M ain Parade Ground. L abeling it

as a “lodg e” i s s o mething of a misnomer, because it is not a sing le, unitary structure. I nstead, the desig n envisions twelve building s totaling 70,000 squa r e f ee t a t a “max imum heig ht of 30 feet above e x isting g r ade,” with each building connected by “open-air porches” and sty led after the historic, Civil W a r-era Graham Street barracks that once s t o o d in

1 Un less o th er w i s e no t ed

, all citatio n s to 54 U.S.C.A are d raw n f ro m W est’ s an n o tated 2 0 1 5 ed itio n o f th e Un ited States Co d e.P R

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roug h ly the same l ocation. F o r simplicity

, we refer to this
propose d development a s “the lodg e.” W h ile the Trust envisioned the lodg e as opening the park to more c ultur a l, educational, and public uses a n d contributing to finan c i al sustainability

, critics a l l eg e the project c ontributes to commercializ ation of the p a r k and undermine s the Main Post’s historic character.

Central to the appeal is whether the construction of a new lodg e (70,000 square feet), o f fs e t by d emolition o f other building s (94,000 square fe et) in the Main Post, constitutes “replacement of ex isting structures of similar siz e in ex isting

areas of development” under the Presidio Trust Act. PTA § 104(c)(3). W e also address whether, in settling on the lodg e location and desig n, the Trust compli e d w ith Section 110(f) of the NHPA, which requires t h a t t he Trust “to the

max imum ex tent possible

. . . undert a k e s uch planning a nd actions as m a

y be necessary to minimiz e harm to the landmark.” 5 4 U

. S.C.A. § 3 06107. B ecause the Trust complied with its oblig ations under both statutes, we affirm the d istrict court’s g rant of summary judg ment in favor of the Trust.

B A C K G R O U N D

The Presidio has been described as the b irthplace of San F rancisco and is noted f

or its diverse architectural sty les a nd formal landscapes that illustrate the complex lay ering o f construction over time. I n t h e m i d -twentieth c entury , the Presidio beg an a transition from a fully -functioning military base to the recreational preserve that it is today

, starting with its desig nation as a National Historic L andmark D istrict in 1962. I n 1994, the Natio n a l P ark Service (“Park Service”) assumed control of the Presidio from the Army and manag edP R

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the p r o perty under the G olden G ate National Recreation Area Act (“Golden Gate Act”), 16 U.S.C. § 460bb et seq

. The Golden G ate Act soug ht to “preserve for pub lic u se a nd enjoy ment ce rtain a

r eas of Marin and San F r ancisco Counties, California, possessing o utsta n d i n g natural, historic, scenic, and r ecreationa l v a l u es, a nd

. . . to provide for the maintenance of needed recreational open space neces s ary to urban e nvironment and planning .” Id. § 46 0 b b

. T he A ct limited new construction w ithin covered lands to “reconstruc[ tion] ,” and specifically provided t h at “[ a] ny

. . . structure which is demolished may b e r e p l aced w ith an improvement of similar siz e . . . .” Id. § 460bb-2(i).

Not long af

ter, Cong ress revisited the Park Service’s responsibility for the entirety of the Presidio, in part out of a desire to reduce the g o vernment’s financial responsibility for maintaining the park. The result was the 1996 Presidio Trust Act, which divided the Presidio into two a r e as (Area A a nd Area B ) and ga v e the newly formed Presidio Trust the authority to oversee, manag e, and develop Area B of the park,
roug h ly eig hty percent of the area. PTA § 104(a). 2

Specifi c a l l y , the Trust is r equired to manag e Area B in accordance w ith the Golden G ate A ct and the Park Service’s “General Manag ement Plan” for the Presidio, both of which require protecting the historic character and predominantly natural s e t t i ng of the Presidio. Id. At the same time, the Trust A ct imposed a duty to d e v e l o p a manag ement p lan

“ d e sig n ed to reduce ex penditures

. . . and increase reven u e s to the F ederal Government to the max imum ex tent p ossible.” Id. § 104(c). To incentiviz e the Trust to f ulfill this latter g oal,

2 T h e Park Serv i c e r e t a i n e d th e rem ain in g tw en ty p ercen t o f th e p ark

, d en o m in ated A rea A , w

h ich ru n s alo n g th e co astlin e.P R

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the Trust Act called for a fifteen-year phase-out of budg e tary support, leaving the Trust responsible for making the Presidio financially self-sustainable. Id. § 105(b). As of 2013, the Presidio h ad achieved financial self-sustainability an d no long er required subsidies from the federal g overnment.

I n 2 002, the Trust adopted a Plan to fulfill the directives of the Trust Act. F o r manag ement purposes the Plan created

seven p lanning districts. Th ese districts adapted the earlier planning districts established b y the Park Service, and were “based on each area’s historic uses; jurisdictional boundaries; human-made features such as roa d s , f ences, and walls; a

nd natural features and demarcations, including topog raphy a nd
veg etation.” E a ch district had a desig n ated “planning concept” that would g uide “future planning and building use decisions.” L ike any part of the Trust’s Plan, these planning districts a

nd their a

pplicable planning concepts may be altered a t a later date. Amendments to the Plan, however, a re subject to statutory a

nd administrative li m i tations a nd may require, for ex ample, administrative review, public c omment,

or consultation with g overnment ag encies. PTA §§ 103(c)(6), 104(c).

The Main Post district, number 1, was d e sig nated a s “Mix ed-Use/Visito r & C o m m u n i t y F ocus,” 3 with a vision that it would be “the heart of the Presidio” and a “focal point for

v isitor orientation.” The Plan capped total building area i n the Main Post d istrict at 1,240,000 square feet. I t also capped lodg ing space in the park at 51,000 square feet.

3 T h e tw o ad

j acen t p lan n in g d istricts—th e Crissy Field d istrict, n u m ber 2
, an d t h e Letterm an d istrict, n u m b er 3 —w ere d esig n ated as “ Mix ed

Use/Visito r & Cu ltu

ral Fo cu s” an d “ Mix ed

- Use/Of f i ce & Resid en tial,”
resp ectiv ely

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This map outlines Areas A and B (including the seven

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F rustrated with the p ersistent “empty and uninviting ” feel of the Main Post and its failure to achieve anticipated public visitation, the Trust b eg a

n to consider a revision to the Plan

as early as 2005. B ecause the Trust was interested in larg er lodg ing options than a

nticipated in the orig inal Plan

, t he U p d a t e required a formal a mendment process, including an environmental review under the N ational Environmental Policy A ct (“NEPA”), 4 2 U.S.C. § 4 3 3 2
, and a formal consultation under Section 106 of the NHPA.

After several y ears and multiple iterations o f environmental review, consultation, and public comment, the T r u s t r e l eased its Update in 2010. The following y ear, the Trust d ocumented its decision-making process in a Record o f Decision, and formally adopted the U p d ate on F ebruary 23, 2011.

The centerpiece of the Update—and the only c omponent

c h a l leng ed in this a

ppeal—is the lodg e proposal. The proposal u ltimately reflected a scaled-back approach that the Trust adopted after consultation w ith in t e rested parties, including the Park Service, the Californi a State H istoric Preservation O fficer, and the Advis o r y Council on H istoric Preservation.

The twelve small building s of the lodg e, which a re aesthetically modeled after the historic Graham Street barracks, would be located on and adjacent to the footprint o f B uilding 34 ( a 3 1,824-square-foot, modern, n on-h i storical building o n the Main Parade that is slated for de m o lition under the Update). This parcel is adjacent to the Main Parade G r ound, w hich the T r

u st converted from a parking lot t o g rassy , open space y e ars ag o. This s et u p i s d epicted in the following schematic:P RESIDIO H ISTORICAL A SS ’ N V

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According to the Trust, this mitig ated desig n conce pt would g reatly increase the public amenities in the Main Post

area while also “streng then[ ing ] the a rticulation of historic
open spaces.” Compared with the Trust’s plans for the lodg e before the proposal w e n t throug h NEPA and NHPA consultation, the modifie d l o d ge desig n also does more to

ens u r e that the “scale, massing

, h eig h t, and desig n” a re “compatible with the surrounding historic environment.”

The lodg e propos a l w a s part of a more ex tensive p lan within the Update, w h i c h contemplated approx imately 146,500 square feet of construction: 24,000 sq u a r e feet o f already c ompleted construction p lus 122,500 s q u a r e feet o f

new construction. The new construction included the 70,000
square feet for the lodg e building s, as well as additions to the Presidio Theatre, addition s t o the Presidio Chapel, an archaeolog

y lab, and incidental new construction.

I n its final f

orm, the Update slated a

pprox imately 148,010
square f eet of building s for demolitio n

. Of those, 94,000
square feet are in the Main Post planning district. 4 As part o f the Doy le Drive Project, the Trust a lso included a n o ther 54,071 square feet of demolition from the nearby Crissy F ield planning d is trict (B u ilding s 605 and 606) and L etterman p l a n n ing district (B uilding 1158) in its demolitio n calcu l a t i o n s

. This project will b e a “partially tunneled a nd covered parkway that r eesta blishes a connection b etween Crissy F ield and the Main Post.”

4 T h is n u m b er in clu des 5 9 ,4 17 sq u are f eet o f n ew d em o litio n p lan s; 3 2 ,2 5 9 s q u a r e f

eet o f n ew d em o litio n (B u ild i n g s 20 4
, 2 3 1
, an d 2 3 0) attrib u t ab le t o a related p ro

j ect ren o v atin g Do y le Driv e; an d 2 ,2 6 3 sq u are f eet o f alread y co m p leted d em o l itio n

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The proposed construction and demolition projects in the Update nette d o u t to a neg ative 1 ,510 square f eet. The mathematical maneuver o f totaling square footag e f r om the Main Post planning district plus the nearby Crissy F ield a nd L etterman planning distri c t s m e ant that the Trust could say that the U p d at e as a whole led to a net square f ootag e decrease. Thus, according to the Trust, it met its statutory oblig ation because the new building s would replace ex isting building s of similar square footag e.

The Trust rooted its a p p r o a ch in what is termed the “banking ” interpretation of Section 104(c)(3), under which the Trust could undertake new c onstruction (“replacement”)

so long as the square footag e (“s i milar siz e”) of the new construction was o ffset by ag g reg ate demolition from any developed part of Area B (“ex isting areas of development”). The T rust ex p licitly relied on the banking interpretation in adopting both the Plan and the Update, a n d i t h as been the Trust’s operative theory of new construction au t h o r i ty until the current litig ation.

After the Trust f

inaliz ed the Up d a te, the Presidio H i s t o r i c a l A s s o c i a t i o n a n d t h e S i e r r a C l u b ( t h e “Associations”) filed suit, challeng ing the U p date on the
g rounds that the new lodg e violated applicable statutes.

On cross-motions for summ a r y judg ment, the district
court g ranted summary judg ment t o the Trust. The district
court specifically disclaimed any reliance on th e Trust’s banking i n t e rpretation of Section 104(c)(3) of the Presidio Trust Act: “I n r eaching a conclusion that the Trus t acted within i t s s tatutory authority

, the court n eed not decide (and does not hold) that the Trust can ‘bank’ square footag e from
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it chooses in anothe r a r ea or district.” I nstead, the district
court found Section 1 0 4 ( c)(3) ambig uous and h eld that the lodg e proposal was well w ithin any reasonable interpretation permitted by

the statute.

The district court also h e ld that, whether Section 110(f) o f the NHPA imposes procedural or substantive oblig ations on
ag encies, it c ould n ot “see what else the Trust co u l d have done b esides not build th e hotel at a ll.” F inally

, the district
court concluded that the Trust complied with NEPA and was not required to re-ci rculate its F inal Supplemental Environ mental I mpact Statement for public comment a fter making relatively

modest chang es to the lodg e proposal.

On appeal, the Associa t i o n s raise claims only under the Pr e s i d i o Trust Act and the NHPA—not NEPA—and have framed the questions on a ppeal a s limited to the lodg e construction. 5 The district court had jurisdiction to review the Update as a final ag ency action u nder 2 8 U.S.C. § 1 331 a nd 5 U.S.C. § 706(2), and we have jurisdiction under 28 U .S.C. § 1291. W e review de novo the distr i c t court’s decision on the motion f

or summary judg ment. Turtle Island Restoration Network v. NMFS , 340 F .3d 969, 973 (9th Cir. 2003).

5 T h e k ey issu e o n ap peal is p o sed as f o llo w s : “ D o es th e P resid io T ru st’ s 2 0 1 0 m an ag em en t p lan v io l ate Sectio n 1 0 4(c)(3 ) o f th e P resid io T ru st A ct

. . . b y au th o rizin g ap p ro x im ately 70 ,0 0 0 s q u are f eet o f n ew co n stru ctio n

o n ex i stin g o p en sp ace in t h e Main Po st? ” T h e seco n d issu e u n d e r t h e NHP A is lik ew ise f

ram ed aro u n d th e leg ality o f th e “ p lan to co n stru ct a

n ew co m m ercial h o tel o n

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A N A L Y S I S

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At the center of the dispute over the lodg e proposal is interpretation of Sect i on 104(c) of the Presidio Trust Act. This section requires the Trust to “develop a comprehensive
prog r am for manag ement o f those lands and facilities within the Presi d i o which are transferred to the administrative jurisdiction of the T rust.

. . . Such prog ram shall consist of—

(1) demolition of stru c t u r es which in the opinion of the Trust, cannot be c osteffectively r ehabilitated, a nd which a

re identified in the manag ement plan for demolition,

. . . ( 3 ) new construction li m i t e d t o replacement o f ex isting structures of s i milar siz e in ex isting areas of development . . .”

PTA § 104(c).

The T rust r eads Section 104(c)(3) to permit new construction in an y e x isting area of development so long a s th e n e w construction is offset by d emolition in any ex isting

area of development throug hout the park— i.e.
, th e b a n king interpret at ion. I n the course of litig ation, the Trust also advanced a narrower interpretation of the statu te that would permit new c onstruction so long as it is offset by demolition in t h e s a me ex isting a

rea o f development— i.e.
, w hat the Associations term the “ banking lite” interpretation. TheP R

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Associations take t h e position that Section 104(c)(3) limits

new construction to replacement of d emolishe d structures with “building s of roug hly the same siz e in roug h ly the same place”—essentially a building -by

- building

, or one-up, o nedown, approach.

W e reject the Trust’s broader banking theory

, but ag r ee that the statute supports a varia n t o f its n arrower interpretation. The building s scheduled f or demolition within the same Main Post planning district (94,000 square f eet) offset the lodg e’s 7 0,000 squa r e feet of new c onstruction within c lose prox i m i t y to the d emolished structures. W e t h erefore hold that the lodg e proposal qualifies as a

“ r eplacement of ex isting structures of similar siz e in [ a n ]

ex isting area[ ] of development.” PTA § 104(c)(3). B ecause the lodg e is the only new construction at issue in this appeal,

we need not c oncern ourselves w ith the calculati o n s r elated
to the remaining demolition and new construction contained within the Update. Nor do we ex p lore t h e outer limits o f what is permissible under the statute.

Our reasoning rests on the f amiliar Chevron a naly sis because t h e Trust is a g overnment entity with statutory authority to make binding policy reg arding Area B of t he 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 precedenti a l v alue of a

n ag ency ’s statutory authority a s determinative of whether Chevron applies). Under Chevron

, we look first to the tex t of the statute to determine whether “Cong ress has d irec t l y s poken to the precise q u estion at issue.” Chevron

, 467 U.S. at 842. “I f the intent of Cong ress is clear, that is the end of the matter; for the court, as well a s the ag ency , must g ive effect to the unambig uously ex pressedP R

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intent o f Cong ress.” Id. at 842–43. I f the intent of Cong ress is not clear, then w e consider w h e ther the Trust’s interpretation is “ based o n a permissible co n s t ruction of the statute.” Id. at 843.

I n reaching their preferred, albeit diverg ent, readi n g s o f “replacement of ex isting structures of similar siz e , ” both sides
start w ith the proposition that the statute is unambig uous. Y et the seeming ly simple statute raises more question s than it

answers and we conclude that it is ambig uous with respect to the scope of the Trust’s authority to undertake new construction. A diz z y ing array o f square footag e fig ures offered by the p arties hints at deep underly ing ambig uity

, a nd nothing i n the plain tex t of the statute—the common denominator for the purposes of o ur analy sis—adds any clarity

. See United States v. Ermoian
, 7 52 F .3d 1 1 6 5
, 1168 (9th Cir. 2013) (“W e beg in, as any effort to interpret a statute must, with the tex t.”).

W e f irst c onsider the Associations’ position that the

s tatute unambig uously mandates a roug h one-up, one-d o w n principle. This arg ument fails on a plain lang uag e reading o f the statute.

The Associations larg ely assume that the word size refers
t o square footag e, but w e note that siz e mig ht also refer to a building ’s volume, heig ht, footprint, scale, massing

, or some

co m b i n ation of factors that are simply not delineated by the
statute an d t hus inevitably require interpretation a nd j udg ment calls on the part of both the T rust and thi s c o u r t

. Additi o n a l l y , the term similar

, particularly as p art of the phrase “similar siz e,” itself evokes a qua l i tative judg ment, which is anathema to the n o t i o n o f clarity at Chevron step

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The purported plain meaning of the word repl a cement d o e s n o t f

are any better. To b e sure, the contours of i t s accepte d meaning limit the r ealm of possibilities, requiring that there be a plausible connection between the replacement and its predecessor. See O x f o rd Eng lish Dictionary (3d ed. 2009) (defining replac e a s “to provide a substitute for” o r “pu t a n equivalent in place of”). B u t whatever inherent limiting e ffect the w ord r e placement mig ht impart, the

narrow meaning is lost when the word is read in contex t. The
statute refers to replacement of “ex isting structures” r a ther than an “ e x i s t i ng structure.” PTA § 104(c)(3). Thus, this lang uag e does not preclude a building or g roups of building s from replacing other g roups of building s, making it i ncreasing ly difficult to be sure w hat must be compared f o r similarity , let alone how to compare it.

The ambig uity of this phrase stan d s out in contrast with the Golden Gate Act, which employ e d similar, but far c learer, lang uag e limiting new c o nstruction. See 16 U.S.C. § 460bb2(i) ( p rohibiting new construction g ene r a l l y but allowing “[ a] ny

. . . structure which is demo l i s hed” to be “replaced with an improvement of similar siz e ” (emphasis added))

. H a d Cong ress intended the Trust Act to maintain the s a m e strictures that g overned new construction i n t he Presidio

u nder the Golden G ate A ct, it presumably w ould have k ept the sing ular f

o rm, which better supports a one-up, one-down principle. Schwenk v. Hartford

, 2 04 F

. 3d 1187
, 1 201 n.12 (9 t h C i r

. 2 000) (“W here limiting lang u ag e present in earlier
statutes is not included in later leg islation, it c an be presumed that the omission was intentional.”).

The Associa t i o n s acknowledg e that the phrase “replacement o f e x isting structures of similar siz e” does not bind the T rust to p ut n e w construction in ex actly the sameP R

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place and make it ex a ctly the same in app e a r a nce or even footprint as the prior structures. They assert onl y that the Trust must put n e w c o nstruction “roug hly ” in the same location a s the demolished building and make it “roug hly ” the

same siz e. The Associations further acknowledg e that it mig ht be possible under their interpretation to remove several building s and r eplace them with one new building of similar
ag g r eg ate siz e. This common-sense concess i o n c ertainly embraces one plausible reading of the statute, bu t o n e can posit both narrower and more ex p a n sive definitions of the provision’s operative terms, which are inherently abstract a nd imprecise. The specificity that Chevron step one d emands is simply lacking here.

The statute also states that the new construction may only

r e p l a c e e x i s t i n g s t r u c t u r e s i n “ e x i s t i n g a r e a s o f development.” PTA § 104(c)(3) (emphasis added). The reference to “ex isting areas” would be render e d superfluous if the provision required the Trust to proceed on a bu ilding

by -building basis, since the building b e i n g replaced would necessarily have been in a n ex isting are a of development. See Marx v. Gen. Revenue Corp.
, 133 S. Ct. 1166, 1 1 7 7

– 78 (2013) (noting that a statutor y interpretation that renders other statutory lang uag e superfluous is g enerally disfavored, particularly if there is another interpretation that g ives effect
to every clause and w o r d of a statute). Reading the phrase “replacement o f ex isting structures of similar siz e” in lig ht o f the p hrase “ex isting areas of development” compounds the ambig uity of PTA § 104(c)(3). I n sum, we are unconvinced by the Associations’ reading of the statute.

Nor are we p e rs uaded that the Trust’s banking interpretation passes the test at Chevron step one. The claim that the statute unambig uously mandates this interpretation isP R

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in c onsiderable tension w ith the plain tex t of the statute. Put literally

, the Trust’s reading would h ave the statute say that the Trust can undertake n e w construction to “replicate square footag e (in the ag g reg ate) f rom b uilding s demolished in any

area of the park where there is development.” This ex pansive formulation essentially r eads out plausible, common-sense meaning s of the words replacement and similar size.

At Chevron step one, we determine whether Cong ress has spoken to the “precise q

uestion at issue.” Chevron

, 467 U.S.
at 842. The answer here is no. The statute is unclear. Notably

, neither side presents a compelling arg ument for any definitive, unambig uous definition of what is r equired of the Tru s t

. I n the end, the most that can be said of the statute is that it g rants some unspecified discretion to the Trust to undertake new construction projects within certain obscure strictures.

I n the face of an ambig uous statute, under the second step of the Chevron analy sis, we defer to the Trust’s interpretation

so long as it is “based on a permissi ble construction o f the statute.” Chevron

, 467 U.S. at 843. W e hold that the Trust’s

ex p ansive banking interpretation is impermissible because it is “manifestly contrary to the sta t ute.” Household Credit Servs., Inc. v. Pfennig

, 541 U.S. 232, 239 (2004) (citation omitted).

W h ile the new construction authority gr a n t e d by the Presidio Trust Act is indeed capacious, there are nevertheless limits to what the Trust can read into the Act’s deleg ation o f author i t y

. Util. Air Regulatory Grp. v. E.P.A.
, 134 S. Ct. 2 427, 2442–43 (2014) (“Even under Chevron ’s deferent i al framework, ag encies must operate ‘wit h i n the bounds o f reasonable interpretatio n

. ’ ” (quoting City of Arlington v

.P R

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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 a n “ enormo u s a n d transformative ex pansion” of the Trust’s “reg ulatory authority without clear cong ressional authoriz ation.” Id. at 2444. F o r e x ample, nothing in the banking approach would prevent the Trust from demolishing a ll of the building s in the Main Post d istrict in order to offset the c o nstruction o f a hig h

rise condominium complex across the Presidio in the heart o f the relatively undeveloped South Hills area. 6 A l t h o ug h the Trust points to the re q u irement that the new construction be in “ex isting areas of development” to disclaim any power to

use the banking approach to under t a k e such a project, the “ex isting a

reas of developm e n t ” lang uag e has n o limiting ef f e c t where it is statutorily u ndefined and virtually every

a r ea of the Presidio (and certainly every planning distri ct ) contains a t least some development. Even if the banking theory contained discernible limits, effor t s to balance the “ledg er” over time and space, while the Trust jug g les multiple development projects over multipl e y ears, would be a nig htmare in practice. Taken at face value, the Trust’s theory would render the entire Area B o f the Pres i d i o subject to unspecified d evelopment under the Trust Act, so long a s square footag e from somewhere (or m u ltiple somewheres)

was replace d with square footag e any where else in the Presidio.

6 T h e T ru st a r g u e s th at i n all lik elih oo d it w o u ld b e p rev en ted f ro m

u n d ertak in g su ch co n stru ctio n b y o t h er ap p licab l e statu tes, su ch as NEP A
, th e NHP A
, an d t

h e Go ld en Gate A ct. Y et w e are req u ired to co n stru e th e T ru st A ct o n its o w

n term s , n o t i n ref

eren ce to o r as p art o f a co n stellatio n

o f o th er in d ep en den t statu t o ry o b lig atio n s.P R

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That the b anking interpretati o n w o uld permit unlimited authority puts it at odds with a m a j o r p u rpose o f the Trust Act— i.e.
, to implement “sound p rinciples of l a n d use planning ” and “protect[ ] the Presidio f rom development and uses which would destroy the scenic beauty and historic and natural character o f t h e a r ea and cultural and recreational resources[ .] ” PT A § 1 01(5). That is reason enoug h to conclude that the banking interpretation is imperm i s s ible. See Chem. Mfrs. Ass’n v. E.P.A.
, 217 F .3d 861, 867 (D.C. Cir. 2000) (h olding EPA’s interpretation of an ambig uous statutory provision unreasonable where it w as i nconsistent 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 o f development in different areas of the park, a nd the historic n ature of the park. F or instance, the South Hills planning district is a larg ely undeveloped natural
area, albeit with some small building s, w h i l e the Main Post and L etterman planning districts a r e relatively urban. The Trust adopted the planning districts i n recog nition of the reality that these districts had different “hist o r i c al uses” a nd features. I f nothing else

, S e ction 104(c)(3) was desig ned to prohibit the wholesale re-purposing of remote corners of the Presidio that currently feature vastly different characteristics and dispara t e 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 ex isting architectural and natural diversity of the Presidio. The Trust’s b anking interpretation cannot p ass muster because it “entirely fail[ s] to consider an important
asp e c t of the problem” at hand. Michigan v. E.P.A.
, 135 S. Ct. 2699, 2707 (2015) ( quoting Motor Vehicle Mfrs. Ass’n ofP R

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United States, Inc. v. State F a rm Mut. Auto. I

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

I n the face of its uns u ccessful efforts to persuade the district court to embrace a broad reading of the statute, on appeal, the Trust advanced a new, narrower interpretation o f Section 1 04(c)(3). The Trust asks us to read t h e s t at u t e to permit c onstruction of new building s where their a ggr e g ate square footag e is offset by dem o lition within the same

ex isting area of development. W e understand the Trust’s al t e r n a tive theory a s a sserting authority to offset new construction w ith d emolition in some phy sical p r o x imity o f the new c onstruction, reg ardless o f t he boundaries o f the planning districts. Under this “ banking lite” theory

, the Trust
arg ues that the lodg e propo s a l—and, indeed, the Update’s

new c onstruction plans as a w hole—are “more than offset[ ] ” by the demolition in the immediat e l y a d jacent areas o f development, including the d emolition in t h e Main Post Update plus demolition of the nearby B uilding s 605, 606, a nd 1158 in the Crissy F ield and L e tterman p lanning districts. The T rust views the three b u ilding s o uts i d e t h e Main Post planning district as “still within the larg er ‘ex isting area o f development’ that includes the Main Post.”

The Record of Decision, wh ich a dopted the Update, is predicated on the Trust’s banking interpretation. I n contrast, the new “ banking lite” theory —advanced for the first time on appeal in respo n s e t o the district court’s rejection of the Trust’s effort to invoke Chevron —is n o t h i ng more than a convenient litig ating p osition. “ Cong ress has deleg a ted to the administrative offi c i a l a nd not to appellate counsel the responsibility for e laborating and enforcing statutory commands.” B owen v. G e o r g e town Univ. Hosp.
, 4 88 U.S. 204, 21 2 ( 1988) ( citation omitted). The “banking lite”P R

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interpretation is not the product of any con s i dered development, n o r has the Trust’s theory been consistent throug hout the administrative process. B ecause of the way it

came a bout and its potentially broad reach, we decline to g ive the litig ating position any special d eference under Skidmore

. Skidmore v

. Swift & Co.
, 323 U.S

. 134, 140 (1944) (“The weig ht of [ an ag ency inter p r et a tion] will depend u

pon the thoroug hness evident in its considerat i o n, the validity of its

r e a s o n i n g , i t s c o n s i s t e n c y w i t h e a r l i e r a n d l a t e r pronouncements, and all o f those factors which g ive it power to persuade, if lacking

power to control.”). 7

The ultimate question is whether the lodg e proposal f alls within the statutory mandate that new c onstruction projec ts

are limited to “ repla ce m ent of ex isting structures of similar siz e in ex isting areas of d e v elopment

. . . .” PTA § 104(c)(3). See also 5 U.S.C. § 706(2). W e conclude that it does. The

new lodg e construction is projected for 70,000 square feet, while the phy sically prox imate planned demolition within the Main Post planning district alone amounts to over 90,000 square feet. 8

7 Ou r ap p ro ach to S

k i d m o r e def eren ce v i s- a- v is an ag en cy ’ s l itig atin g p o sitio n h as v aried d ep en d in g on th e f actu al circu m stan c e s

. Co mp are Ala ska v

. F

e d

. S u b sisten ce Bd

. , 5 44 F.3 d 1 0 8 9
, 1 0 9 5 (9 th Cir. 20 0 8) (af f o rd in g n o d ef

eren ce to th e g o v ern m en t’ s l itig ati n g p o sitio n ) with An d ersen v. DHL Ret. Pen s io n Pla n , 76 6 F.3 d 1 20 5
, 1 2 1 2 (9 th Cir. 20 1 4) (af f o rd in g S kid mo re d ef eren ce to th e g o v ern m en t’ s liti g atin g p o sitio n ); Price v. S teved

o rin g S erv. o f Am., In c. , 6 9 7 F.3 d 8 2 0
, 8 2 9

– 3 2 (9 th Cir. 2 0 1 2 ) (en b an c) (af

f o rd in g Skid

mo re d ef eren ce to th e g o v ern m en t’ s litig atin g p o sitio n ).

8 T h e T ru st lef

t o p en th e q u estio n of w

h eth er it w ill f

o l l o w th ro u g h in d e m o l ish in g Bu ild in g s 4 0 an d 41
, w h ich are lo cated in th e Main Po st p lan n in g d istrict a n d w ere co u n ted in its 9 4,0 0 0 sq u are f eet dem o litio n calcu latio n

. Ev en w ith ou t th ese tw o bu ild in g s, w h ich t o tal 1 6 ,5 1 4 sq u areP R

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As already e x plained, the term “replacement” i s not confine d to a one-for-one demolition/new c onstruction meaning

. I n stead, rep lacement can include, collectively

, construction of more than o ne structure offset by demolition of more than one structure, thus g iving meaning to the p lural lang uage of “ex isting structures .” PTA § 104(c)(3) (emphasis added). F urther, treating t h e “ similar siz e” restri ction as encompassing at least a comparison of the
square footag e of the relevant demolished building s, without necessarily

cabining its meaning to that unit of analy sis, ties the statutory requirements tog ether in a manner c o nsistent with t h e s t a tute’s lang uag e and p urpose. Id. F inally

, the
p hrase “ex isting areas of development” should b e limited to development in a

reas phy sically prox imate to the location o f the building being r eplaced. 9 I d

. This interpretation harmoniz es all of the elements of t h e s t at ute. See Boise Cascade Corp. v. E.P.A.
, 942 F .2d 1427, 1432 (9th Cir. 1 991) (“Under accepted canons of statutory interpretation, w e must interpret statutes as a whole . . . .”).

f eet, th e rest o f th e p lan n ed d em o litio n in th e Main P o st p lan n in g d istrict

w o u ld still ex ceed th e 7 0 ,0 0 0 sq u are f eet o f n ew lo dg e co n stru ctio n

.

9 Un lik e th e m o r e s w e e p in g b an k in g th eo ry , th is in terp retatio n also im p o s es so m e f

o reseeab le lim its o n th e T ru st’ s n ew co n stru ctio n au t h o rity th at are m o re i n k eep in g w ith th e p u rp o ses o f th e P resid io T ru st A ct. T h e T ru st co u ld n o t, f

o r in s tan ce, u n d ertak e iso lated n ew co n stru ctio n in a

rem o t e co rn er o f th e p ark

, b ecau se it w o u l d n eed t o e s t a b lish p h y sical
p ro x im ity to an ex istin g area o f d ev elo p m en t in w h ich th e p u r p o rted

“ rep lacem en t” w as lo cated

. T h i s i n t erp retatio n f u rth er rein f

o rces th e p u rp o s es o f th e P resid io T ru st A ct b y allo w i n g th e T ru s t to d raw n ew

co n stru ctio n au th o rity f

ro m p h y sically p ro x im ate p arcels t h at are alread y lik ely sim ilar in ch aracter. It th eref o re p r e v e n ts th e T ru st f ro m f u n d am en tally re- p u rp osin g certain areas o f th e p art in o n e f ell sw o o p , an d
g en erally p reserv es th e arch itectu ral, h isto ric an d n atu ral d iv ersity o f th e P resid io as a w h o le.P R

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W e conc l u d e that the T rust’s Update with respect to the proposed lodg e and the offsetting d e molition in the Main Post

area is consistent with Section 104(c)(3). W ithout doubt, the proposed lodg e is phy sically prox imate to the other Main Post demolition sites. Each of the building s being “ replace[ d] ” is within several hundred y ards of the proposed lodg e and f alls within a similarly d eveloped area of the Presidio. I t does not matter that there may be more structures than before: the new building s sti l l r e place the other building s within the Main Post planning d istrict. T o be sure, there remains some leeway

as to how far the statute ex tends, especially w it h r e s p e c t to the req u irement of phy sical prox imity

. B ut we n eed not delineate the outer limits of th a t ex tension n or consider whether p r ox imity is defined by the boundaries of the planning districts. A lthoug h the Trust reached across district lines to justify proposed construction in a ddition to the lodg e , that ex p a nded construction effort is not before us. Thus, we do not r each the question of whether B uilding s 605, 606, a nd 1158 (encompassing 54,071 square feet), which a re within
two d ifferent, but adjacent, planning districts

, l eg itimately could be counted to offset other plan n e d construction in the Main Post. All we decide here is that the lodg e c onstruction and demolition taking p lace within the Main Post satisfy the replacement, s i z e, and prox imity limitations of Section 104(c)(3).

II. T H E N A T I O N A L H I S T O R I C P R E S E R V A T I O N A C T

B e cause the Presi d i o is a National Historic L andmark District, any project that a lters the Presidio’s structures is subject to the provisions of the NHPA. 54 U.S.C.A. § 306101. The NHPA imposes tw o sets of oblig a tions on federal ag encies, depending on the features of the h istoric site at issue.P R

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To beg in, Section 106 require s an ag ency undertaking a project ex pected to adversely affect a public or pr i v a te site listed on the National Reg ister of Historic Places to “take into
account the effect of the undertaking on any historic property .” 54 U.S.C.A. § 3 0 6 1 0 8. Cong r ess created the Advisory Council on Hist o ric Preservation (“Advisory Council”) to aid in the implementation of this task a n d t o “recom m e nd measures to coordinate activities of F ederal, State, and local ag encies and p rivate institutions a nd individuals relating to historic prese rvation[ .] ” Id. § 3 04102(a)(1). The Advisory Counc i l h a s promulg ated

ex tensive r eg ulations g overning Section 106 consultation. S e e 36 C.F

. R. §§ 800 et seq

. These reg ulations r equire the undertaking ag ency to consult with other par t i e s reg arding whether the project poses any identifiable adverse effects, id. § 800.5, and to “seek way s to avoid, minimiz e or mitig ate the adverse effects,” id. § 800.6(b)(1)(i).

A second requirement is that projects affect i n g g overnment-owned sites and N ational Historic L andmarks, such as the Presidio, trig g er the a dditional 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
soug h t to “clarif[ y ] a

n d codif[ y ] the minimum responsibilities

ex p ected of f

e d e r a l a g encies in c arry

ing out the purposes o f the [ NHPA] [ .] ” H.R. Rep. N o. 96-1457, at 36 ( 1980). F o r instance, ag encies must seek to u s e historic properties available to them b efore embarking on c o n s t ruction o r acquisition, 54 U.S.C.A. § 3 06101(a)(2), and must develop a preservation prog ra m for federally -owned properties, id. § 306102. National Historic L andmarks are subject t o the specific requirements of S e c t ion 1 10(f), which reads, in relevant part: “Prio r t o the approval of any F ederalP R

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undertaking that may directly and adversely affect any National His t oric L a

n dmark, the head of the responsible F ederal ag ency shall to the max imum ex tent possible

u n dertake such planning and actions a s may be necessar y t o minimiz e harm to the landmark.” Id. § 306107.

I n discharg ing its oblig ations under the NHPA, the Trust
eng ag ed in e x tensive Section 106 c onsultation with multiple parties, including state hist o r i c al preservation officers, the Advisory Cou n c i l

, and the public. Ultimately

, the Trust adopted recommendations mad e b y the Park Service a nd interested entities to address and mitig ate any adverse effects of the lodg e. The Ad visory Council a nd other consulting parties s i gn e d a memorandum of ag reement confirming compliance with th e required planning processes. See 36 C.F .R. § 800.6(c).

I n lig ht o f the ex tensive compliance efforts under Section 106, the Associations, n ot surprising ly

, do not challeng e that aspect of the Trust’s planning

. However, they arg ue that the Trust failed to comply with the addit i o nal requirements o f Section 110(f). According to the Associations, the Section 110(f) lang uag e relating to a ) “minimiz [ ing ] h arm t o the landmark” and b) “to the max imum ex tent possible,” imposes

a heig htened substantive s t andard ag ainst which the Trust’s final decision must be judg ed. 1 0 W e disag ree.

10 Sectio n 1 1 0 (f

) g o es o n to say th at th e resp on sib le ag en cy “ sh all af f o rd th e [A d v iso ry ] Co u n cil a reaso n ab l e o p p o rtu n ity to co m m en t w ith reg ard
to t h e u n d e r t a k i n g

. ” 5 4 U.S.C.A

. § 3 0 6 1 0 7

. T h e A sso ciatio n s d o n o t assert th at th is p o rtio n of Sectio n 1 1 0 (f ) is su b stan tiv e, an d th e A d v iso ry Co u n cil’ s af

f irm atio n in t

h e m em o ran d u

m of ag reem en t th at th e T ru st h ad af f o rd ed it an “ op p o rtu ni t y t o co m m en t o n th e Un d ertak in g ” i s in an y

ev en t su f f icien t to satisf y th is o b lig atio n

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Our court has consist en tly held that “the NHPA, like NEPA, is a p rocedural statute requiring g overnment ag encies
to ‘stop, look, and li sten’ b efore proceeding ” w hen their action w ill affect national historical a ssets. 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

, 8 7 7 F .2d 1053, 1056 (D.C. Cir. 1989) (“Our r eview of the statu t o r y tex t [ of the NHPA] persuades u s that Cong ress intended these provisions to have

a limited r each; they a

re a imed solely at discourag ing federal
ag en ci e s from ig noring p reservation values in projects they initiate, a pprove funds f

or or otherwise c ontrol.”). Althoug h these cases do not reference Section 110(f) specifically

, they do post-date adoption of the section.

Section 110(f) c annot b e read in a v a c uum. I t builds on the g e neral consultation p rocess set out in Section 106, which the Associations acknowledg e is a procedural “stop, look, a nd listen” requirement, but sets out a hei gh t ened procedural standard for Nation al Historic L andmarks, c alling for “planning a

nd actions as may be necessary to minimiz e harm
to the landmark.” 54 U.S.C.A. § 306107. The o bliga tion referred to is the requirement to “undertake such planning a nd actions,” and to d o so to the “max imum ex tent possible.” Id.

Cong r ess o ften requires a g encies to consider a variety o f alternatives o n t h e theory that such consideration makes it

more likely s u b s t a ntive results will follow. See J oseph L

. Sax
, The (

Unhappy) Truth A bout NEPA
, 26 Okla. L

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

was that by requiring the ag encies to ex pl o re , c onsider, a nd publicly describe the adverse environ m e n t a l effects o f their
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less e nvironmentally damag ing activities.”). Thus, Cong ress may mi x substantive lang uag e with purely procedural constraints. Such is the case here: the directive “minimiz ing harm to the landmark” to the “max imum ex tent possi b le” reflects what Cong ress a p p a r ently hoped would result from heig htened analy sis.

The only other circuit to c o n front the issue is in accord that Section 110( f) is not a substantive mandate. I n addressing Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303(c), the F irst Circuit held t h at “S ection 4(f), unlike sections 106 and 110(f) [of the N HPA]
, imposes

a substantiv e m andate.” Neighborhood Ass’n of the Back Bay, Inc. v. F

e d

. Transit. A dmin.

, 463 F .3d 50, 64 (1st Cir. 2006). 1 1

The leg islative history confirms that Cong ress intended to impose only a “hig her standard f or a g ency pla n n i ng in relationship to landmarks before the ag ency bring s the matter to the cou n c i l

. ” H.R. Rep. No. 96-1457, at 38 (1980) (emphasis added). I n deed, the leg isl at i v e committee noted that, “[ a] lthoug h [ it] d eleted a mandatory requirement that an ag e n c y first determine that ‘no prudent and feasible alternative to suc h u n dertaking ex ists,’ [ it] [ did] intend for
ag encies to consider prudent a nd feasible alternatives.” Id. (emphasis added). As w ith NEPA, it would be d i f ficult to interpret this his t o r y as sug g e sting any thing other than an

11 T h e Fif th Circu it h as also h eld g en erally th at NHP A i s a p ro ced u ral
statu te. S ee Co l iseu m S

q u a re Ass’n

, In c. v. Ja ckso n , 4 6 5 F.3 d 21 5
, 2 2 5 (5 th Cir. 2 0 06 ). A lth o u g h i t w en t o n to n o te th at Sectio n 1 1 0 (f ) “ i m p o ses

an af f irm ativ e d u ty o n f

ed eral ag en c i e s t o m i n im ize h arm to Natio n al Histo ric L an d m ark s w

h ere it f in d s th at a p ro

j ect w ill ad v ersely af

f ect su ch lan dm ark s,” th e co u rt d id n o t reach th at sp ecif ic q u estio n b ecau se th ere

w as n o ad v erse ef

f ect. Id

. at 2 4 3

– 4 4

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intent to require a g encies to canvass their options w ith a keen
ey e.

W e are not persuaded by t h e arg ument of amicus curiae National Trust for Historic Preservation that Cong ress clearly intended to model Section 110(f) on another statute t h a t the
courts have interpreted a s substantive—Section 4(f) o f the Department of Transportation Act. 49 U.S.C. § 303(c). Notably

, Section 4(f), while including n early i d e ntical lang uag e about m i n imiz ing harm, also includes a very important quali f

i e r n ot present in the NHPA, namely that historic sites may be a

p p roved “ only if

. . . there is no prudent and f easible alternative to using that land[

. ] ” 4 9 U .S.C. § 303(c) (emphasis added). The F irst Circuit recog n iz ed this critical difference in d eclaring Section 4(f) to be a substantive mandate, in contrast to Section 1 1 0(f). Neighborhood A ss’n
, 463 F .3d at 64. I f any

thing

, Cong ress’s decision to strip the mandatory lang uag e about ex h austing prudent and feasible alternatives from the bill that e v entu a lly became Section 110(f), see H.R. Rep. 9 6

- 1 4 5 7, at 38, is evidence o f Cong r ess’s intent to disting uish Section 110(f) from Section 4(f) of the transportation leg isl a t i on. Schwenk

, 204 F .3d at 1201 n.12.

Althoug h court decisions i n terpreting other, similar
statutes can be persuasive, our best g uide to w hat this statute

means is the tex t. The leg islative 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 9 93, 998 (9th Cir. 2015) (noting that the first source to ex amine is the “plain words of the statute” a nd the last is “similar provisions w ithin the statute as a whole and the lang uag e of related o r similar statutes” (citations omitted)); Negusie v. Holder

, 5 55 U.S. 511, 5 19–20 (2009) ( rejecting an a

nalog y to a holding in a case interpre t i n gP R

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another, similar statute where the lang uag e and desig n of the statute in the case at hand were disting uishable).

I n holding that Section 11 0(f) does not impose a substantive o blig ation, w e d o not mean that Cong ress failed
to heig hten the procedural hurdles an ag ency must satisfy with respect to projects affecting N a t i onal H istoric L andmarks. The Trust cannot rest on the fact that

, by all indicatio n s , it complied with the letter of Section 106. Something more was required u nder Section 1 10(f). The best indication o f w h a t e lse was required c an be found in the leg islative history

, which say s that the ag ency should at least “consider prudent and feasible alternatives” to avoid adverse effects. H.R. Rep. No. 96-1457, at 38; see also 63 F ed. Reg

. 20,495, 20,503 (Apr. 24, 1998). This oblig ation stands on top of the more g eneral duty in th e S e c tion 106 consultation
process to “seek w ay s to avoid, minimiz e o r mitig ate

. . . a dverse effects.” 36 C.F .R. § 800.6(b). I n short, the Trust

was required to thoroug hly consider—rather than simply identify a nd catalog

—prudent and feasible a lternatives to its proposed lodg e desig n and in its planning process.

W e are satisfied that th e Trust met this heig htened standard within the planning process. The o r i ginal lodg e proposal chang ed dramatically o ver time, from a behemoth build i n g to a smaller, historically appropriate collection o f building s. I n its 2009 r esponse to the Trust’s plans, the Park Service recommended that the Trust “[ r] educe the footprint, scale, massing

, and heig ht of the p roposed lodg e; break up the

mass into separate building s

. . . o r remove the lodg e from the Main Post.” I n res p o nse, the Trust broke the lodg e into twelve separate building s with spaces of ten to twenty feet between them to preserve v isual continuity between the Old and Main Parade Grounds, reduced the total square f ootag eP R

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from its earlier proposals, and adopted at least a partially historically integ rated desig n concept.

The Trust also g ave consideration to possible lodgi ng in
t h e ex isting Montg omery Street B arracks building s, b ut fo u n d that the project was not feasible at the time. As late as 2010, in the final stag es of its deliberation, the Trust g ave ex tensive consideration to at least three lodg ing alternatives in its F inal Suppl e m e ntal Environmental I mpact Statement, n one o f which included any n ew lodg e construction. 1 2 I n the Trust’s judg ment, arrived at throug h e x t ensive public eng ag ement, these no-lodg e alternatives were insufficient for the purposes of the Main Post Update. Altog e ther, the Tru s t ’s thoroug h consideratio n o f lodg ing o ptions in available ex isting properties was sufficient to satisfy its oblig ation to “ u s e , to the max imum ex tent feasible, historic p roperty avai lable to the ag ency [ .] ” 54 U .S.C.A. § 306101(a)(2); see also 63 F ed. Reg

. at 20,500 (“[ An age n cy ] has an affirmative responsibility to seek and use h istori c properties to the

max imum ex tent feasible in carry ing ou t i t s activities.”). Nothing in the record sug g ests that the Trust “r e lied on factors Cong ress did not intend it to consider, entirely failed
to consider an important a spect of the problem, o r offered an

e x p l anation that r

uns counter to the evidence before t h e ag ency o r is so implausible that it could not be ascribed to a difference in view or the product o f ag ency ex pertise.” Cascadia W

ildlands v. B ureau of Indian Affairs

, 801 F .3d

12 T h e s e i n clu d ed : 1 ) “ L o d g in g in P ersh in g Hall (B u ild in g 4 2 ) an d d o rm ito ry ro o m s f

o r v isito rs in B u il d i n gs 4 0 an d 4 1 ”; 2 ) “ L o d g in g in P ersh in g Hall an d B& B s in u p p er F u n sto n A v en u e Of f icers’ Qu arters (B u ild in g s 1 1

- 1 6 )”; a nd 3 ) “ R esid en ces in P ersh in g Hall an d d o rm ito ry

ro o m s f o r v isito rs in B u ild in g s 4 0 an d 4 1.”P R

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1105, 1 110 ( 9th Cir. 2015) (quoting Ecology C t r

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

The Park Service a

nd the Trust disag reed about whe t h e r the g oals of the Update could b e a ccomplished without a new lodg e. T he Park Servi c e c oncluded that a “new lodg e a t the Mai n P o s t i s not the only means to ‘welcome visitors a nd animate the Main Parade’” and that “there are other way s to

ac h i e v e this g o al, such as throug h r e h abilitation of ex isting building s at the Main Post, the establishment of a V i sitor Center, a nd p rog rams.” L ikewise, the Presidio Historical Association stated that its p r oblems with the Update stemmed
not from a lack of “ h ard work and creativity ,” but from problems “ at the level o f t h e concepts themselves.” B ut under the terms of Section 110(f), the Trust was not oblig ated
to ag ree with the Park Service’s or the Presidio H i s t orical Association’s views—it had to g ive t h e m full and reasoned consideration, which it did. I ndeed, the Trust “incorporate[ d] the majority of the recommendations ou t lined in the [ Park Service’s] report,” and offered reasoned ex planations where it deviated f

rom the Park Service’s p referred result. The Trust’s procedural undertaking s sure l y meet the heig htened standard of care imposed by Se c tion 110(f) to undertake “to the max imum ex tent possible

. . . such planning and actions

as may b e necessary to minimiz e har m to the landmark.” 54 U.S.C.A. § 306107.

C O N C L U S I O N

B e cause the T rus t co m p lied with the Presidio T r ust A ct and t h e NHPA, we affirm the d istrict court’s g r a nt o f
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Post of the Presidio. We d o not c onsider the Trust’s proposed replacement construction other than the lodg e.

AF F IRMED.