Plaintiff, the private Presidio Golf Club in San Francisco, California, challenged
a proposal by defendant, the National Park Service (NPS), to construct a public
golf clubhouse near its century-old private clubhouse, which was eligible for
listing in the National Register. Presidio asserted that NPS violated the National
Environmental Policy Act (NEPA) and National Historic Preservation Act (NHPA)
by failing to consider that constructing the public clubhouse might lead to
neglect and destruction of the historic private facility. NPS then challenged
plaintiff's standing to sue under NEPA, NHPA, and the Administrative Procedures
Act, and filed for summary judgment.
NPS argued that plaintiff lacked standing for the following reasons: first,
that any future injury to Presidio would be a purely speculative economic competitive
injury that is not within the zone of interests to be protected by NEPA or NHPA;
second, that Presidio lacked standing in its representative capacity based on
injury to its club members; and third, that any future injury would be "self-induced,"
"conjectural and speculative," and not fairly traceable to the actions
of defendant. The court found that purely economic interests do not fall within
the "zone of interests" to be protected by NEPA or NHPA, noting that
on previous occasions it has held that a court would have to find that plaintiff's
interests are inconsistent with the purposes of NEPA, and the interests are
so inconsistent that it would be unreasonable to assume that Congress intended
to allow the suit. It further noted that the "zone of interests" test
is not demanding.
After reviewing the facts, the court concluded that retention of the historic
clubhouse was consistent with the purposes of NHPA as a "living part of...community
life," and that it furthered NHPA's goals to "encourage the...private
preservation and utilization of...the Nation's historically built environment."
The court found no need to require the participation of individual members in
the suit as suggested by NPS, since the interests and claims are undifferentiated
among the members and similar to the interests and claims of Presidio. Finally,
determining that the projected membership losses could well prove fatal to Presidio
and constitute a future injury that is fairly traceable to NPS's alleged procedural
violation, the court held that plaintiff had standing.
The court then turned to plaintiff's allegations that NPS violated NEPA and
NHPA, noting the guidance from previous case law stating that "an agency's
decision should be overturned if it was 'arbitrary, capricious and abuse of
discretion, or otherwise not in accordance with the law.'" Western Radio
Services Co. v. Espy, 79 F.3d 896, 900 (9th Cir.), cert. denied, 117 S.Ct.
80 (1996). It also stated that "review under the arbitrary and capricious
standard is narrow and the reviewing court may not substitute its judgment for
that of the agency." Id.
Although NPS expressed confidence throughout the NEPA process that compliance
would end with the preparation and approval of a Finding of No Significant Impact,
the court found that the agency's approach to the process was not pre-decisional
and was therefore permissible. It also determined that it was neither arbitrary
nor capricious for NPS to not take a "fuller account of the remote environmental
effects on the historic private clubhouse that might result from the economic
impact of competition from the new public clubhouse."
Presidio argued that NPS erred during its NHPA review by failing to consider
the golf club as an "interested party" and consulting with it. The
court found that all that NPS had to do regarding interested parties during
effect assessment was to "consider their views." The court, based
on NPS responses to public comments, decided that NPS had indeed considered
Presidio's comments. The fact that NPS disagreed with those comments did not
present a compliance problem. Although Section 106 of NHPA requires agencies
to "consult with…interested persons" as to the resolution of
adverse effects, such consultation was unnecessary in this case due to NPS's
determination of no adverse effect.
The court ended its decision by holding that the district court did not err
when it considered a "litigation affidavit." The affidavit was prepared
to explain NPS's prior analyses of the possibility of using the private clubhouse,
and also pointed out the standard developed by the Ninth Circuit in a previous
case, which permits an "explanation" of agency decision making to
allow for an adequate judicial review.
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