Full opinion text
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ISHII, District Judge. This is an action for declaratory and injunctive relief by plaintiffs High Sierra Hikers Association and Wilderness Watch (collectively “Plaintiffs”) against defendant United States Forest Service, and two individual Forest Service officials (“Defendants”) and intervener-defendants, California Trout, Inc., Tuolumne County Sportsmen, Kennedy Meadows Resort, James Phelan, and the California Department of Fish and Game (collectively, “In-terveners”). The action is pursuant to the Wilderness Act, 16 U.S.C., §§ 1131, et seq., and the National Environmental Policy Act (“NEPA”), 42 U.S.C., §§ 4321 et seq. The action challenges a decision by Defendants to repair and maintain and operate certain small water impoundment structures located in the Emigrant Wilderness Area. In the instant motion, Plaintiffs seek summary judgment of their claims that Defendants’ actions were contrary to law and for injunctive relief to prohibit the maintenance or repair of any dam structures in the Emigrant Wilderness. Defendants and Interveners counter-move for summary judgment on all Plaintiffs’ claims. Federal subject matter jurisdiction exists pursuant to 28 U.S.C., § 1331. Venue is proper in this court. PROCEDURAL HISTORY This case was transferred from the Northern District of California on April 14, 2005. Apparently, the operative pleading in the case at the time of transfer was the first amended complaint. On September 12, 2005, Plaintiffs moved to amend/correct the complaint. That motion was granted in part on October 24, 2005, and the currently-operative Second Amended Complaint (“SAC”) was filed on October 28, 2005. Plaintiffs moved for summary judgment on November 11, 2005. Interveners filed an opposition on December 19, 2005, which Defendants joined on December 22, 2005. Defendants filed their opposition to Plaintiffs’ motion for summary judgment and cross-motion for summary judgment on December 22, 2005. Interveners joined Defendants opposition and cross-motion for summary judgment on January 3, 2006. Plaintiffs filed their reply on January 20, 2006, and filed a motion to strike certain extra-record materials on January 23, 2006. Defendants/Interveners filed their opposition to the motion to strike on January 25, 2005, and Plaintiffs filed their reply on February 2, 2006. Hearing on the parties’ motions and cross-motions for summary judgment was held on March 24, 2006. At the hearing the parties requested leave to file additional briefing regarding congressional intent. Leave was granted. Plaintiffs filed a supplemental brief on March 27, 2006; Defendants filed a response to the supplemental brief on March 30, 2006; and Intervener-Defendants filed a supplemental brief on March 28, 2006. FACTUAL BACKGROUND/UNDISPUTED FACTS Plaintiffs and Defendants have filed statements of undisputed facts as to their respective motions for summary judgment, and filed objections to the factual aversions of the opposing parties. The facts set forth below represent a synthesis of the facts submitted by the parties. Disputed facts are noted and factual disputes are resolved to the extent possible. Although neither party offers undisputed facts to explain the why the controversy is before the court at this time, it is helpful, as an initial matter, to briefly address the history and nature of the controversy. The introductory portion of the Draft EIS summarizes the historical antecedents of the current controversy. Following designation of the Emigrant Wilderness in 1975, a document titled the “Emigrant Wilderness Management Plan” was prepared in 1976, which contained a requirement for a study to determine “... the condition, value and cost-effectiveness of the various [water control structures] as well as their effects on the natural hydrological processes.” AR at 3460. The water control structures had been built beginning in the 1920’s to develop a local fishery that had begun during the 1890’s when the natural lakes in the area were planted with trout by cattlemen who use the meadows in the area for grazing. The dams, which had been constructed mostly of mortar and local stone were operated on a shared basis by the Forest Service, California Department of Fish and Game (“CDFG”), sportsmen’s groups, and others. Since 1988, operation of the stream flow releases has been done primarily by CDFG. Fisheries in the Emigrant Wilderness are co-managed through a local Memorandum of Understanding (“MOU”). Controversy over the status of the dams in the Emigrant Wilderness “resulted in recent Congressional consideration of legislation related to the Emigrant dams. No specific legislation has been enacted. The Forest Service has conducted several planning efforts related to the disposition of the dams since designation of the Emigrant Wilderness. Public and legislative requests have been received to maintain, repair and operate twelve of the dams. No maintenance has occurred since 1989 due to appeal decisions on previous planning efforts.” AR at 3460. The following facts have been compiled from the statements of undisputed facts submitted by both parties. The facts are not disputed unless otherwise noted. On January 3, 1975, Public Law 93-632 (Section 2(b)) designated 106,988 acres as Emigrant Wilderness, and on September 28, 1984, Public Law 98^125 designated an additional 6,100 acres as part of the Emigrant Wilderness. The Emigrant Wilderness is a glaciated area of high mountain peaks, granite domes, glacial valleys, and alpine and subalpine meadows interspersed with patches of subalpine coniferous forest. The elevation of the Emigrant Wilderness ranges from 4,700 feet to 11,-700 feet at Leavitt Peak. The Emigrant Wilderness contains over 100 named lakes and over 500 small, unnamed lakes. At the time the Emigrant Wilderness was designated, 18 dams existed within it; a fact that was known to Congress at the time of the designation. The parties differ as to the status and characterization of the fish populations in the Emigrant Wilderness. Plaintiffs aver, and Defendants do not dispute, that the high mountain lakes of the Emigrant Wilderness were originally without any native fish population. Plaintiffs characterize the lakes of the region as having been stocked with “non-native” trout, beginning in the 1890’s. Defendants state, and Plaintiffs do not dispute, that 77 of the 100 named lakes in the Emigrant Wilderness have historically been stocked with fish. Defendants point out the fish that were stocked were Rainbow Trout, a species that is native to both the Stanislaus and Tuolumne river systems. The waterways of the Emigrant Wilderness drain into the Stanislaus and Tuolumne rivers. Defendants contend, and Plaintiffs do not dispute, that the trout populations that have been established in those areas of the Emigrant Wilderness that were historically stocked are at least partially self-reproducing and that current fish stocking operations are for the purpose of enhancing populations for the benefit of anglers. The parties agree that, of the 18 dams in the Emigrant Wilderness, 15 are associated with lakes, and except for Y-Meadow, impound water on naturally existing lakes. All the dams are constructed of local stone and mortar, except for one dam which is earthen. The dams are of three functional types. Twelve of the dams are streamflow augmentation dams that are intended to increase downstream flow during dry weather in late summer or early fall. These dams raise the height of natural lakes from about 6 to 10 feet. Three of the dams are lake level dams that add approximately three feet of height to existing natural lakes, but do not regulate downstream flows. Three dams are meadow enhancement dams that are not associated with lakes. These dams are located in stream channels and serve to raise water tables to sub-irrigate meadows. The parties do not generally dispute the foregoing except that Plaintiffs characterize the lakes whose natural levels are raised by dams as “reservoirs.” Defendants consistently oppose this characterization, contending the impoundments do not meet the dictionary definition as they do not impound water for irrigation, domestic, industrial or other human use. Plaintiffs also aver the meadow enhancement dams originally served to sub-irrigate meadows for the benefit of livestock. Plaintiffs allege a number of undisputed facts that relate to the decline in importance of the dam structures in the Emigrant Wilderness since the 1950’s. Defendants have disputed the proffered facts, but the disputations pertain mostly to the appropriateness of individual descriptive words, rather than the overall facts themselves. An examination of the Draft Environmental Impact Statement (“Draft EIS”) supports the following factual alie-gations: The dam system in what would eventually be incorporated in the Emigrant Wilderness began in the 1920’s for the purpose of increasing the area’s trout population and to “provide downstream benefits to fish habitat, food production, and power production outside the Emigrant.” Draft EIS at 3536. Local stock-men, who had been planting trout in the Emigrant since the turn of the century noticed increased numbers of fish during wet years. They developed the system of dams to enhance stream flows during dry years and to thereby improve the population of trout. In 1957 the Cherry Lake Dam, which lies outside the Emigrant Wilderness, was completed; thereby flooding Cherry Valley and creating the 268,000 acre-foot Cherry Lake Reservoir. As a result of the construction of the Cherry Lake reservoir, the importance of the system of dams in the Emigrant Wilderness diminished in terms of their importance to flood control and power production. In addition, the Draft IES states that the role of the dams in supporting a fishery diminished with the advent of aerial stocking of fish in remote areas. The Draft IES states the dams in the Emigrant Wilderness continue to augment stream flows during the dry season, but that augmented stream flows are probably not necessary to maintain natural fish reproduction. The Draft EIS points to fish populations which have been sustained in Yosemite National Park, an area similar to the Emigrant Wilderness, even though the stocking of trout in Yosemite National Park has been phased out over the last 25 years. The parties do not dispute that the dam structures in the Emigrant Wilderness have deteriorated to varying degrees since they were originally constructed. It is also not disputed that those dams structures that were built to manipulate stre-amflow have not been operated for that purpose for roughly 13 years. The Draft EIS gives particular attention to the effects of the various proposed actions on two amphibian species, the Mountain Yellow-legged Prog (“MYLF”) and the Yosemite Toad (“YT”). Both species are classified as “sensitive” under the Endangered Species Act, meaning there has been significant decline in population in the past and/or significant reduction of species distribution. For purposes of this case it is sufficient to briefly note only the potential effects of proposed action and the no action option on these species. The parties disagree in their respective characterizations of the effects of the proposed and alternative actions with respect to these species. The Draft EIS supports the following conclusions: See AR at 3714-3715 and 3718-3719. The MYLF is rarely far from water and depends on deep pond water for escape from predators and for overwintering habitat. The Draft EIS notes a reciprocal relationship between trout populations, which feed on the MYLF, and MYLF populations. Based on the Draft EIS it is difficult to draw a clear conclusion that one option or the other clearly favors or disfavors MYLF populations. MYLF populations may be benefitted under the preferred option by the maintenance of the dams because access to deep water would be maintained. On the other hand, enhanced trout populations resulting from fisheries enhancements may increase predation on the MYLF. Thus the no-action option may benefit the MYLF to the extent trout populations decline. The Draft EIS points out CDFG oversees trout stocking activities and consequently populations of trout are more dependent on CDFG actions than on Forest Service actions. Additionally, there is some small probability that MYLF habitats could be disturbed by repair and maintenance operations. With respect to YT populations, there is evidence in the Draft EIS to support the contention that the species would be relatively more benefitted by the no-action option than by the preferred option. The YT inhabits primarily wet meadows and seasonal ponds. AR at 4147. The no-action option would gradually reduce lake volumes as the dams deteriorated thereby potentially increasing meadow habitat for the YT. AR at 3719. The Final EIS notes that the no-action option may reduce YT habitat to the extent non-maintenance of the meadow maintenance dams may result in loss of wet meadow area. Because the YT does not inhabit deep water, it is less susceptible to predation by trout. Defendant Forest Service prepared a Final EIS for the Emigrant Wilderness dam project. The Final EIS incorporated the facts set forth in the Draft EIS with a few corrections that are not important here. In the Final EIS the Forest Service considered 11 alternatives. Of those 11 alternatives, three were considered in detail. Plaintiffs’ objection to the word “considered” on the ground it represents a legal conclusion, rather than fact, is noted and rejected. In the Record of Decision (“ROD”) for the Emigrant Wilderness Dams Final EIS, the Forest Supervisor decided that 11 of the existing 18 dams within the Emigrant Wilderness would be maintained. The Forest Supervisor determined that these eleven structures are the minimum necessary for administration of the wilderness for reasons that include the following: (a) seven of the maintained dams are eligible for the Historic Register, and they protect and preserve historic values for future interpretative, educational and scientific benefits; (b) the other four maintained dams improve natural reproduction capabilities within existing fisheries which is beneficial for wilderness as it reduces impacts on natural processes and supports the reduction or elimination of the need by CDFG for fish stocking in these lakes; and (c) the dams are a highly valued cultural connection in the local history. Plaintiffs disputations as to the correctness of the characterizations and conclusions reflected in the Final EIS are noted. Plaintiffs allege the dam structures in the Emigrant Wilderness are “non-conforming” under the Wilderness Act. To support the proffered fact, Plaintiffs cite the introduction to the Draft EIS, which contains a single sentence referencing “non-conforming structures.” In its entirety, the sentence states: “Congress, which often includes what the disposition of nonconforming structures and uses should be [in a wilderness area], did not address the Emigrant Wilderness dams in either act.” AR at 3459. Defendants contend the statement is misleading and point out that the Forest Service’s ROD found that the eleven dams for which ongoing maintenance is proposed are compatible with the Wilderness Act and necessary for the minimum requirements for the wilderness’ administration. This proffered fact lies close to the heart of Plaintiffs’ argument for summary judgment. How the court should regard the eleven dam structures vis-a-vis the Wilderness Act is a subject that will be taken up in the discussion that follows. Defendants allege the Forest Supervisor’s decision, as reflected in the ROD, does not authorize the reconstruction of any dam within the Emigrant Wilderness. Plaintiffs’ dispute this proffered fact on the ground the term “reconstruction” is a legal and not factual term. Plaintiffs consistently refer to the proposed actions pertaining to the dams as “reconstruction.” Defendants consistently object to the use of that term and insist the actions proposed in the ROD are maintenance, repair and operations. Regardless of any ambiguity between the terms “reconstruct,” “repair” and “maintain,” Forest Service has defined the terms it uses for purposes of its planning documents. The ROD defines the term “maintain” to include “routine activities such as log removal, mortar replacement and rock replacement.” The term “repair” is defined as “activities necessary to restore the structure to its original full functioning condition, such as valve replacement and slide-gate replacement.” AR at 4193. The Final EIS states that, pursuant to the Forest Service Manual, “Only the Chief [of the Forest Service] may authorize reconstruction of water developments within [the] designated wilderness.” AR at 4144, 4192. The Final EIS also states that the activities proposed do not include the reconstruction of the Cow Meadow Dam, because such reconstruction cannot be authorized by the Forest Supervisor. Elsewhere, the ROD states the Cow Meadow Dam was destroyed by storms in the late 1990’s and the existing lake is at its natural level. Thus, by implication, the term “reconstruction” as used in the Draft and Final EIS and in the ROD means to replace that which once existed but no longer exists. In other words to make operable a structure that repair would not be sufficient to make operable. The court finds the documents cited by Defendants support their allegation the ROD does not authorize reconstruction of any dam structures as that term is defined by the ROD and by the Final EIS. Of the eleven dams that have been selected for repair, maintenance and/or operation by the ROD, ten are streamflow augmentation dams that were constructed predominantly in the 1920s and 1930s and up to the early 1950s. All these dams were built primarily by a person named Fred Leighton, who, Defendants allege, made significant contributions to stream-flow maintenance dams and fisheries improvements in California. Seven of the eleven dams (Bigelow, Emigrant, Emigrant Meadow, Leighton, Long, Lower Buck, and Red Can) qualify as historic properties under the National Historic Preservation Act (NHPA) and are eligible for listing on the National Register of Historic Places (“Historic Register”). Structures that are included in the Historic Register must meet at least one of four possible criteria and must retain their integrity. Forest Service determined that the seven dams listed above met two of the four criteria: (1) they “are associated with events that have made a significant contribution to the broad patterns of our history;” and, (2) they “are associated with the lives of persons significant in our past.” AR at 2679. The parties agree that defendant Forest Service applied the criteria for inclusion in the National Register and came to the conclusion the seven above-named dams met the criteria. The parties also do not dispute that the California State Office of Historic Preservation of the California Department of Parks and Recreation concurred in the Forest Service’s determination. Plaintiffs contend the dams should not be listed because they hinder, rather than enhance the wilderness, and that regardless of the criteria employed the continuing existence of the dam structures is in conflict with the Wilderness Act. For a more extensive discussion of the historical context of the Emigrant Wilderness dams, and the application of Historical Register criteria to the issue of their eligibility for inclusion in the Register, see pages 2656 to 2685 of the Administrative Record. In 1988, the Forest Service issued an Environmental Assessment and Decision Notice under NEPA determining that one more of the dam structures is eligible for listing NHPA, and deciding to maintain/repair twelve of the eighteen dam structures. That decision was appealed. On appeal, the Regional Forester reversed the decision and ordered all of the dam structures to be removed. Subsequently, the Regional Forester reversed that decision, allowing the Forest Supervisor to determine if new information related to the dam structures was available. In 1991, the Forest Service issued a Land Resource Management Plan for the Stanislaus National Forest, Which directed that a management plan for the Emigrant Wilderness be written within two years. In 1998, the Forest Service issued an EIS and ROD to adopt “Emigrant Wilderness Management Direction” that stated that the Forest Service could rebuild eight of the dam structures, in order to maintain streamflows. In 1999, the Regional Forester reversed the Forest Supervisor’s decision, stating that adequate documentation did not exist to explain why each dam structure might be necessary to meet minimum requirements for administering the wilderness. Since the 1999 decision, no specific plan or disposition exists for the dam structures. In 1995, the Forest Service and CDFG entered into a Memorandum of Understanding (“MOU”) related in part to managing fish and wildlife in certain wilderness areas. The MOU states that removal of existing water-related improvements is among the activities that require joint decisions by the two agencies. In 2000, the Forest Service and CDFG adopted a “Joint Strategy” for future management of these specific dam structures. Plaintiffs characterize the Joint Strategy as being based on an agreed-upon rationale of stre-amflow maintenance. Defendants dispute this characterization and contend the Joint Strategy “was a cooperative framework that left the agencies to each make an independent final decision based upon a site specific analysis.” The Draft EIS supports Defendants’ characterization of the Joint Strategy. AR at 3490-91. After review of the Joint Strategy, the court concludes it reflects a rationale to support fishery maintenance or enhancement, along with a commitment to further monitor to determine whether actions are necessary to benefit fairy shrimp and yellow-legged frogs. In 2002, the Forest Service began preparing the EIS at issue in this case. In 2003, the Forest Service issued a draft EIS stating that “[mjaintenance of water impoundment structures will be consistent with the USDA Forest Service/[CDFG] Joint Strategy.” The draft EIS includes a proposed action to repair/maintain/operate twelve of the eighteen dam structures in the Emigrant Wilderness. The Draft EIS analyzed two other alternatives: letting all of the structures naturally deteriorate (the “do nothing alternative”), and a “heritage” alternative, which would have maintained the seven dam structures eligible for listing under the NHPA. The Final EIS, issued in December 2003 corrected a few portions of the Draft EIS and otherwise adopted the Draft EIS as final. The ROD, which was also issued in December 2003, modified the action proposed in the Final EIS slightly by authorizing action on eleven, rather than twelve of the dams. Plaintiffs allege a number of additional undisputed facts, most of which pertain to alleged beneficial effects of the operation of streamfiow dams on trout populations, and negative effects on populations of the mountain yellow-legged frog and the Yosemite toad, and negative effects on riparian habitats generally. Generally, Defendants aver the evidence cited in the administrative record does not support Plaintiffs contentions or that Plaintiffs contentions are misleading. Specific contentions with respect to environmental effects will be discussed and resolved, if and when they may be germane to the issues being discussed. LEGAL STANDARD Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Poller v. Columbia Broadcasting System, 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir.1985); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir. 1984). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the moving party has the burden of proof at trial, that party must carry its initial burden at summary judgment by presenting evidence affirmatively showing, for all essential elements of its case, that no reasonable jury could find for the non-moving party. United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir.1991) (en banc); Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986); see also E.E.O.C. v. Union Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49, 55 (1st Cir.2002) (stating that if “party moving for summary judgment bears the burden of proof on an issue, he cannot prevail unless the evidence that he provides on that issue is conclusive.”) If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir. 1979). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the mere allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n. 11, 106 S.Ct. 1348; First Nat’l Bank, 391 U.S. at 289, 88 S.Ct. 1575; Strong v. France, 474 F.2d 747, 749 (9th Cir.1973). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505; Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir.1987). DISCUSSION I. Standard of Review of Agency Actions Defendants correctly contend that, because neither the Wilderness Act or NEPA create a private right of action, judicial review of agency action is governed by Administrative Procedures Act (“APA”). Pursuant to the provisions of the APA as codified at 5 U.S.C. § 706, an agency action may only be set aside if it is “ ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ [Citation.]” Wilderness Soc’y v. United States Fish & Wildlife Serv., 316 F.3d 913, 921 (9th Cir.2003). The parties disagree as to the amount of deference that should be accorded to Forest Service in making its decisions. The analytical framework employed in assessing the deference due agency decisions in the context of the Wilderness Act is well established: In Wilderness Society v. United States Fish & Wildlife Service, our en banc panel addressed the question of the level of deference due to the Forest Service when it makes decisions implementing the Wilderness Act. 353 F.3d 1051, 1059-60 (9th Cir.2003) (en banc). We apply the framework articulated in that case to determine what level of deference to apply to the facts at hand. If the statute is clear and unambiguous, no deference is required and the plain meaning of Congress will be enforced. Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842 — 43[, 104 S.Ct. 2778, 81 L.Ed.2d 694] (1984); Wilderness Soc’y, 353 F.3d at 1061. If the statute is ambiguous, the agency’s decision is entitled to Chevron deference if it has the force of law. United States v. Mead Corp., 533 U.S. 218[, 121 S.Ct. 2164, 150 L.Ed.2d 292] (2001). If the decision does not have the force of law, it is reviewed with “respect” according to the factors set out in Mead and Skidmore v. Swift & Co., 323 U.S. 134, 140[, 65 S.Ct. 161, 89 L.Ed. 124] (1944); Wilderness Soc’y, 353 F.3d at 1067. High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 638-639 (9th Cir.2004). Following Wilderness Society, the court begins by asking whether the dam improvement project “offends the plain meaning and manifest congressional intent of the Wilderness Act.” 353 F.3d at 1060. Under Chevron, the inquiry is “ ‘whether Congress has directly spoken to the precise question at issue.’ ” Id. (quoting Chevron, 467 U.S. at 842, 104 S.Ct. 2778). A, Applying Chevron The first task in the application of the Chevron analysis is to enlist the “[c]anons of statutory construction [to] help give meaning to [the] statute’s words.” Wilderness Society, 353 F.3d at 1060. It is important to note that, following Wilderness Society, the inquiry is not exhaustive. Rather, the question is, did Congress speak to the issue directly ? Id. By definition, this analysis includes only what can be discerned by examination of the text of the statute itself; and specifically excludes any resort to non-statutory materials. See BedRoc, LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (“our inquiry begins with the statutory text, and ends there as well if the text is unambiguous.”); United States v. McNeil, 362 F.3d 570, 574 (9th Cir.2004) (“resort to legislative history is justified only where the ‘face of the act is inescapably ambiguous.’ ”). Thus, where the issue is whether Congress has spoken to the issue at hand directly and unambiguously, the court may not, as a matter of logic, be guided by evidence of legislative history since to do so the court would be required to resolve the question of whether Congress has spoken directly in the negative. The en banc court in Wilderness Society set forth the interpretive canons relevant to this enquiry: We begin with the language of the statute. [Citation.] Another fundamental canon of construction provides that “unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning. [Citations.] ¶ It is also “a fundamental canon that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” [Citations.] If necessary to discern Congress’s intent, we may read statutory terms in light of the purpose of the statute. Thus the structure and purpose of a statute may also provide guidance in determining the plain meaning of its provisions. [Citation.] Wilderness Society, 353 F.3d at 1060-1061 (internal citations and quotations omitted). Plaintiffs claim that Forest Service’s decision to repair/maintain/operate eleven of the eighteen dams in the wilderness violates the categorical prohibition against structures contained in the Wilderness Act. Pertinent to the issues presented in this motion, the Wilderness Act declares the purposes of land designated as wilderness area and limits permissible activities on designated lands. These purposes and limitations are set forth in 16 U.S.C. § 1133 as follows in pertinent part: (b) Agency responsibility for preservation and administration to preserve wilderness character; public purposes of wilderness areas Except as otherwise provided in this chapter, each agency administering any area designated as wilderness shall be responsible for preserving the wilderness character of the area and shall so administer such area for such other purposes for which it may have been established as also to preserve its wilderness character. Except as otherwise provided in this chapter, wilderness areas shall be devoted to the public purposes of recreational, scientific, educational, conservation, and historical use. (b) Prohibition provisions: commercial enterprise, permanent or temporary roads, mechanical transports, and structures or installations; exceptions: area administration and personal health and safety emergencies Except as specifically provided for in this chapter, and subject to existing private rights, there shall be no commercial enterprise and no permanent road within any wilderness area designated by this chapter and, except as necessary to meet minimum requirements for the administration of the area for the purpose of this chapter (including measures required in emergencies involving the health and safety of persons within the area), there shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical transport, and no structure or installation within any such area. The parties agree that dams are “structures” or “installations” within the meaning of the Wilderness Act. The question the court must first answer is therefore whether dams are the sort of “structures” or “installations” the maintenance and operation of which would offend Congress’s intent when it declared that designated wilderness areas would have “no structure or installation within any such area.” Congress may speak to an issue of permissible uses in an area designated as wilderness by specifying those uses at the time the area is designated. The parties agree that Congress made no mention in the legislation that created the Emigrant Wilderness of any dams or water impoundment structures. Congress may also speak to the precise question at issue within the statute itself. Congress at least touched on the issue of dams and reservoirs in wilderness areas by providing, pursuant to 16 U.S.C. § 1133(d)(4) that the President may authorize certain water development projects within wilderness areas for the public good. Neither party contends section 1133(d)(4) is at play in this case. Aside from the provisions of section 1133(d)(4), the text of the Wilderness Act provides no indication that Congress intended to exempt existing dams in wilderness areas from the general prohibition against “structures” or “installations.” The court must conclude the plain and unambiguous text of the Wilderness Act speaks directly to the activity at issue in this case — repairing, maintaining and operating dam “structures” — and prohibits that activity. In addition, the overall language of subdivision (d) of section 1133, along with case authority and Forest Service Policy, imply that “when there is a conflict between maintaining the primitive character of the area and between any other use [... ] the general policy of maintaining the primitive character of the area must be supreme.” Minnesota Pub. Interest Research Group v. Butz, 401 F.Supp. 1276, 1331 (D.Minn. 1975) (overruled on other grounds in Minnesota Pub. Interest Research Group v. Butz, 541 F.2d 1292 (8th Cir.1976)); see also 16 U.S.C. § 1133(d); AR at 2076 (“Where there are alternatives among management decisions, wilderness values shall dominate over all other considerations except where limited by the Wilderness Act, subsequent legislation, or regulations”); 36 C.F.R. § 293.2(c) (“wilderness values will be dominant to the extent not limited by the Wilderness Act”). Based on the foregoing, the court concludes the proposed actions in this case— the repair, maintenance and operation of the dam structures — are clearly and unambiguously contrary to the provisions of the Wilderness Act. Consequently, Forest Service’s determination to undertake those actions is not due deference under Chevron. B. Deference Due to Forest Service’s Technical Determinations Having determined, as this court has, that Chevron deference is not due with respect to the agency’s determination of the ultimate issue that is the subject of challenge, the court follows Wilderness Society, where the court looked to the Supreme Court’s decisions in Mead and Skid-more to determine what deference the court was to accord the agency’s non-Iegal determinations. The Wilderness Society court summarized the standard for determining deference as follows: Under Mead and Skidmore, the weight that we are to give an administrative interpretation not intended by an agency to carry the general force of law is a function of that interpretation’s thoroughness, rational validity, and consistency with prior and subsequent pronouncements. Skidmore, 323 U.S. at 140, 65 S.Ct. 161 [....] Mead adds as other relevant factors the “logic[] and expertness” of an agency decision, the care used in reaching the decision, as well as the formality of the process used. Mead, 533 U.S. at 235, 121 S.Ct. 2164. Wilderness Society, 353 F.3d at 1068. Applying the factors in Mead and Skid-more to the present case, it is clear that the determinations by Forest Service that are technical or categorical in nature are due great deference. Therefore the Forest Service’s observations and conclusions concerning the conditions of the dams, the effect of operation of the dams on various species, the effect of operation of the dams on riparian habitats, and the status of the dams vis-a-vis their historical designations or qualifications are due great deference. II. Agency Actions Under the Wilderness Act The parties agree that Forest Service’s determination that the repair, maintenance and operation of the dams in the Emigrant Wilderness is lawful under the Wilderness Act is based on the agency’s determination that those actions are “necessary to meet minimum requirements for the administration of the area for the purpose of this chapter.” Following the analysis in Wilderness Society, the court, having determined that Forest Service’s decision to repair, maintain and operate the dams is not entitled to deference under Chevron, reviews de novo whether the actions authorized by the ROD are, in fact, “necessary to meet the minimum requirements.” Because the court defers to Forest Service’s technical observations and conclusions, the Forest Service’s conclusion that operation of the streamflow dams will enhance trout populations is accepted as fact. The court further gives deference to Forest Service’s categorization of certain of the dam structures as qualifying for inclusion in the Historical Register, and to Forest Service’s conclusion that maintenance and repair of those dams will preserve their historical value. The question for the court is whether the Forest Service plan of repair, maintenance and operation of the streamflow dams is “necessary to meet minimum requirements for the administration of the area for the purpose of this chapter.” Not surprisingly, case authority directly or indirectly addressing the issue of repair, maintenance or operation of stream flow dams in wilderness is sparse. Pertinent to the issue of whether a fishery enhancement project in a wilderness area is compatible with the Wilderness Act, the Wilderness Society court observed: We thus deal with an activity with a benign aim to enhance the catch of fishermen, with little visible detriment to wilderness, under the cooperative banner of a non-profit trade association and state regulators. Surely this fish-stocking program, whose antecedents were a state run research project, is nothing like building a McDonald’s restaurant or a Wal-Mart store on the shores of Tus-tumena Lake. Nor is it like conducting a commercial fishing operation within designated wilderness, which we have previously proscribed. [Citation.] Nor is the project like cutting timber, extracting minerals, or otherwise exploiting wilderness resources in a way that is plainly destructive of their preservation. ¶ Conversely, the challenged activities do not appear to be aimed at furthering the goals of the Wilderness Act. The project is not aimed at preserving a threatened salmon run. Looked at most favorably for the proponents of the fish-stocking project, it might be concluded that the project only negligibly alters the wild character of Tustumena Lake and is not incompatible with refuge values, though those issues are disputed. Wilderness Society, 353 F.3d at 1062-1063 (footnotes and internal citations omitted). Ultimately, the decision in Wilderness Society was pegged to the court’s determination that the fish-stocking activity was commercial. However, the scope of facts considered by the Wilderness Society court is instructive in the present case. Significantly, the Wilderness Society court recognized that the fish-stocking operation, in and of itself, was not an activity that furthered the goals of the Wilderness Act because the activity was not aimed at preservation of the activities of established populations of fish that were later threatened. The situation in the instant case is analogous. What the planned action seeks to accomplish in this ease is to regulate flows in streams whose flows were not historically regulated for the purpose of enhancing a population of fish that did not historically exist and whose continuing existence is not dependent on the repair, maintenance or operation of the dam structures. While the outcome of the case in Wilderness Society turned ultimately on the commercial nature of the fish-stocking operation, the present case turns on man-made structures whose presence in a wilderness area are no less at odds with the textual provisions of the Wilderness Act. Forest Service’s own information acknowledges that the operation of the stream flow dams alters the dynamic of populations of fish and amphibians. While Forest Service casts the changes brought about by the dams as achieving a balance of sorts between amphibians and fish; the fact remains that the balance is being struck between the historically established amphibious species, whose habitat is diminished in the balance, and the historically absent fish species, whose presence is the result of relatively recent human endeavor. While fishing is an activity that is common among visitors to wilderness areas, neither fishing nor any other particular activity is endorsed by the Wilderness Act, nor is the enhancement of any particular recreational potential a necessary duty of wilderness area management. Rather, the Wilderness Act seeks to “secure for the American people of present and future generations the benefits of an enduring resource of wilderness.” 16 U.S.C. § 1131(a). The wilderness that the Act seeks to preserve is not defined by reference to any particular recreational opportunity or potential utility, but rather by reference to the land’s status or condition as being “Federal land retaining its primeval character and influence, without permanent improvements or human habitation [....]”§ 1131(c). Because it is not possible to infer from this language that establishment (much less enhancement) of opportunities for a particular form of human recreation is the purpose of the Wilderness Act, it is not possible to conclude that enhancement of fisheries is an activity that is “necessary to meet minimum requirements for the administration of the area for the purpose of this chapter.” Defendants have argued that Wilderness Society can be distinguished from the present case on the basis of the nature of the activity being challenged. In Wilderness Society, the activity in question was of a commercial nature. Wilderness Society, 353 F.3d at 1062. The fact the challenged activity in Wilderness Society was of a commercial nature is a distinction without a difference. Both “commercial enterprises” and “structures” are prohibited by the same sentence within the Wilderness Act and the only distinction between the two is that “structures” may be maintained to the extent they may be “necessary to meet minimum requirements for the administration of the area.” The court does not find, and the parties present no argument, that the existence of that exception implies that a structure offends the Wilderness Act any less than a commercial enterprise where that exception clause is not applicable. The Wilderness Act presents no textual basis for the proposition that the prohibition against “structures or installations,” of which the dams in this case are an example, is somehow less compelling than the prohibition against “commercial activity.” Indeed, if one considers the overall legislative intent of the Wilderness Act to preserve “area[s] where the earth and its community of live are untrammeled by man,” 16 U.S.C. § 1131(c), one must conclude that the sort of commercial activity that was found offensive to the Wilderness Act in Wilderness Society is no more offensive, and perhaps less so, than the activity proposed in the present case. In Wilderness Society, the activity at issue was “an activity with a benign aim to enhance the catch of fishermen, with little visible detriment to wilderness.... ” Wilderness Society, 353 F.3d at 1062. In the instant case, the proposed activity creates permanent structures that alter the hydrological scheme of the area and alter the natural distribution of species and habitats. When the court applies the analytical process in Wilderness Society that resulted in the prohibited of a relatively benign commercial enterprise in the wilderness area in that case, the court can find no distinction that would justify a different decision in this case. Lacking a textual reason to hold that a commercial enterprise, no matter how benign, is more compellingly or categorically prohibited than the Wilderness Act’s prohibition against “structures”, the court must presume the same categorical prohibition that applied in Wilderness Society against commercial enterprises must also apply here against the “structures” that are at issue in this case. There is a similar paucity of authority with respect to the repair, maintenance, or operation of “structures” within wilderness areas on the basis of their status as being eligible for or entered into the National Register of Historic Places. In Wilderness Watch v. Mainella, 375 F.3d 1085 (11th Cir.2004) (“Mainella ”), the court examined the effect of the Wilderness Act on the obligations of the Park Service to maintain certain historical structures and an associated access road located in a designated wilderness area on Cumberland Island. Id. at 1091. In Mainella the Eleventh Circuit addressed primarily the use of motorized public access to certain historical structures in and adjacent to the wilderness area, and secondarily the duty of the agency to preserve the historical structures within. With respect to the historical structures, the Mainella court observed: ... [16 U.S.C.] Section 1133(b) mentions “historical use” along with “recreational, scenic, scientific, educational, [and] conservation” uses. However, this list tracks the definition of wilderness areas in § 1131(c), which describes “a primitive and unconfined type of recreation” and “ecological, geological, or other features of scientific, educational, scenic, or historical value.” 16 U.S.C. § 1131(c). Given the consistent evocation of “untrammeled” and “natural” areas, the previous pairing of “historical” with “ecological” and “geological” features, and the explicit prohibition on structures, the only reasonable reading of “historical use” in the Wilderness Act refers to natural, rather than man-made, features. Id. at 1092. The court went on to observe that “Congress wrote the wilderness rules and may create exceptions as it sees fit. Absent these explicit statutory instructions, however, the need to preserve historical structures may not be inferred from the Wilderness Act nor grafted onto its general purpose.” Id. The only other case cited by any party having directly to do with the maintenance of historical structures in wilderness areas is Olympic Park Associates v. Mainella, 2005 WL 1871114 (D.Wash.2005) (“Olympic Park”). In Olympic Park, the court considered whether the repair and maintenance of wilderness shelters, which were eligible for inclusion in the National Historical Register, was “necessary to meet minimum requirements for the administration of the area for the purpose of this chapter.” The Olympic Park court noted that Congress did not specifically provide for the repair, maintenance or continued presence of the shelters and therefore that the Park Service’s proposed actions were based on the exemption provision of 16 U.S.C. § 1133(c). The Olympic Park court found persuasive the Ninth Circuit’s decision in Wilderness Society, which took a restrictive view of the exception language. Olympic Park, 2005 WL 1871114 at *6. The Olympic Park court examined the conflict between the Wilderness Act’s purpose of preserving wilderness values with both the historic or safety-related purposes of the exception language of section 1133(c). The court determined that, to the extent the Wilderness Act seeks to preserve historical values, the reference is to the historical values of the natural environment, not to the structures placed there by man. Olympic Park, 2005 WL 1871114 at *6. The Olympic Park court also held that agency actions necessary to meet “requirements for the administration of the area for the purpose of this chapter (including measures required in emergencies involving the health and safety of persons within the area),” does not justify the maintenance or repair of wilderness shelters where it is evident from the language of the Wilderness Act that it is an integral part of the wilderness experience that visitors to the wilderness area “meet nature on its own terms.” Id. Thus, such authority or case law as exists indicates that where courts have considered the issue of whether man-made structures may be maintained in a wilderness area under either the general exception clause or for the purpose of preservation of historical values, the preservation of wilderness values had been predominant. See Mainella, 2005 WL 1871114 at *8 (designation under Wilderness Act is a specific provision which takes precedence over status under the NHPA, which is a general provision). As Plaintiffs point out, the dams in question, while perhaps exemplars of the contributions of a particular historical individual to small-dam construction, are not unique. Absent a declaration by Congress of the need to restore and preserve the dam structures in recognition of their historical significance, there is nothing the court can point to that would authorize such an action where the maintenance of the dams would otherwise come into conflict with the Wilderness Act. Further, courts have construed the phrase “necessary to meet the minimum requirements for administration of the area” narrowly. The analysis in Olympic Park indicates how “necessity” in this context has been interpreted in the strict sense of “that which much be by the nature of things: that cannot be otherwise by reason of inherent qualities: [...] that is determined and fixed and inevitable.” Webster’s Third New Int’l Dictionary, 1510 (1993). In Olympic Park, even the utility of the shelters as a safety feature for visitors who might find themselves unprepared in the face of harsh weather was not sufficient to justify the repair or replacement of the shelters. The Olympic Park court held that the phrase “necessary to meet minimum requirements for the administration of the area for the purpose of this chapter (including measures required in emergencies involving the health and safety of persons within the area),” 16 U.S.C. § 1133(c), “most logically refers to matters of urgent necessity rather than to conveniences for use in an emergency.” Olympic Park, 2005 WL 1871114 at *4. Thus, even safety considerations will authorize only those actions that are strictly and immediately necessary and are not sufficient to authorize the repair of structures where some other administrative approach not involving structures would suffice. Although Olympic Park is merely persuasive and not binding on this court, the application of the principles in Wilderness Society by the Olympic Park court to the issue of historical structures is highly relevant to the instant case. Defendants attempt to distinguish the case at hand from Olympic Park by pointing out that in Olympic Park the structures were to be removed, completely rebuilt and replaced. To the extent Defendants are trying to build a distinction based on rebuilding rather than maintaining or repairing, the difference is more one of semantics than substance. It is not the activity itself that is at issue, it is the object of the activity. Here, as in Olympic Park, the object of the activity is to perpetuate the existence of structures in a designated wilderness area. The rationale set forth in Olympic Park that produced the conclusion that the repair and replacement of the structures was not permissible under the Wilderness Act is equally applicable in the instant case. Here, there is no logical necessity in maintaining, repairing, or operating the dams in order to administer the area for purposes of the Wilderness Act. The area manifested its wilderness characteristics before the dams were in place and would lose nothing in the way of wilderness values were the dams not present. What would be lost is some enhancement of a particular use of the area (fishing), but that use, while perhaps popular, is not an integral part of the wilderness nature of that area. Defendants also attempt to differentiate the present case with that of Mainella by pointing out the agency involved in that case (and in Olympic Park) was the National Park Service (“NPS”) rather than the Forest Service. Although Defendants contend the NPS administers parks for purposes “different than the Forest Service multiple use objectives,” they offer no authority for the implied contention that application of the Wilderness Act should yield different results under similar factual circumstances where the objectives of the administrating agency are different. The court can find nothing in the Wilderness Act that supports that contention and is aware of no case authority to that effect. Defendants also contend Mainella can be differentiated factually because the structures at issue there were historical houses or structures associated with a historical settlement on the island. See Mai-nella, 375 F.3d at 1088-1089 and n. 3 (describing the Plum Orchard, a mansion complex located just outside the wilderness area, and the Settlement, an area occupied by freed slaves after the Civil War). Defendants draw a distinction between the settlement structures in Mainel-la, and the dams in the instant case which, Defendants contend, are small, low, and visually integrated into the natural surroundings. Again, the court is unaware of, and Defendants do not cite, any textual basis for making that type of distinction, nor is it clear how such a distinction would or could be pertinent if the issue is the preservation of historical structures in a wilderness area. Distinctions such as unobtrusive and harmonious with the natural environment involve subjective judgments that may vary depending on the interests of the observer. The Wilderness Act’s prohibition against structures is categorical so far as the court can determine, allowing only those exceptions that are specifically set forth in the Act or in Congress’s designation of a particular wilderness area, neither of which apply here. In sum, Defendants’ basic argument with regard to the Wilderness Act centers around the level of deference owed to Forest Service with regard to its findings and conclusions. The flaw in Defendants’ argument is that, regardless of how carefully and thoroughly Forest Service considered the various action plans, the plans considered and the plan finally chosen are predicated on the legal contention that maintenance, repair and operation of the dams is “necessary to meet minimum requirements for the administration of the area for purposes of this chapter” — a contention that is without legal or logical support. While Forest Service’s factual findings are due considerable deference under Skidmore, the legal foundations of Forest Service’s actions are due no deference because the proposed actions are contrary to the express purposes of the Wilderness Act, and are in the nature of permitting and do not carry the force or effect of legal determinations. See Wilderness Society, 353 F.3d at 1059-60 (discussing factors governing deference under Chevron, Mead, and Skid-more). The legal basis for Forest Service’s preferred plan is without support and runs afoul of the Wilderness Act because the actions contemplated are not “necessary to meet minimum requirements for the administration of the area” in conformity with 16 U.S.C. § 1133(c). B. Interveners’ Contentions Interveners filed an “Amended Notice of Opposition,” which the court refers to as “interveners’ opposition” hereinafter. In-terveners’ opposition contains a number of grounds not mentioned in Defendants opposition and therefore separate consideration of those arguments is appropriate. Interveners’ first contention is summarized completely by the heading given to the argument — -“The Wilderness Act Is Not A Purist Manifesto.” The gist of this argument is that the Wilderness act does not favor any particular viewpoint of wilderness. Interveners examine the text of the Wilderness Act and seek by way of argument to blunt the effect of certain words like “untrammeled” by urging the court to interpret their meaning in a more moderate way so as to conclude the Wilderness Act, while prohibiting overt development, does not prohibit “improvements” for the benefit of human enjoyment of the area. The conclusion Interveners promote is that dams of the sort found in the Emigrant Wilderness are not prohibited by the Wilderness Act; or, in the alternative, the Wilderness Act does not impose an affirmative duty on the Forest Service to remove the dams. This section of Interveners opposition is remarkable in that it comprises seven pages of argument without a single citation to legal authority, except for the excerpts from the Wilderness Act, which Interven-ers seek to define to their advantage. In-terveners point to environmental benefit, or non-detriment, and argue at some length that maintaining and operating the dams as streamflow regulation would have a beneficial impact on fish populations at minimal ecological cost to the Emigrant Wilderness as a whole. Interveners’ arguments are, at least to some extent, self-defeating. First, subjective characterizations aside, the Wilderness Act is as close to an outcome-oriented piece of environmental legislation as exists. Unlike NEPA, or the Clean Air or Clean Water Acts, the Wilderness Act emphasizes outcome (wilderness preservation) over procedure. As such, it is as close to a “purist manifesto” as may be found in the area of environmental law. Interveners comments relative to whether the Wilderness Act is or is not a purist manifesto miss the necessary legal points: whether the repair, operation or maintenance of man-made water impoundment structures are non-conforming under the Wilderness Act, and, if so, whether the repair, maintenance or operation of the dams is otherwise authorized by the exception language because of the historical status of the structures or because of the necessity of the dams in the administration of the wilderness area. Interveners point out that while there are about 100 named lakes in the Emigrant Basin and about 85 of those are stocked with trou