538 U.S. 803 (2003), 02-196, National Park Hospitality Assn. v. Department of Interior

Docket Nº:No. 02-196.
Citation:538 U.S. 803, 123 S.Ct. 2026, 155 L.Ed.2d 1017, 71 U.S.L.W. 4399
Party Name:NATIONAL PARK HOSPITALITY ASSOCIATION v. DEPARTMENT OF THE INTERIOR ET AL.
Case Date:May 27, 2003
Court:United States Supreme Court
 
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538 U.S. 803 (2003)

123 S.Ct. 2026, 155 L.Ed.2d 1017, 71 U.S.L.W. 4399

NATIONAL PARK HOSPITALITY ASSOCIATION

v.

DEPARTMENT OF THE INTERIOR ET AL.

No. 02-196.

United States Supreme Court

May 27, 2003

        Argued March 4, 2003

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

        Syllabus

The Contract Disputes Act of 1978 (CDA) establishes rules governing disputes arising out of certain Government contracts. After Congress enacted the National Parks Omnibus Management Act of 1998, establishing a comprehensive concession management program for national parks, the National Park Service (NPS) issued implementing regulations including 36 CFR § 51.3, which purports to render the CDA inapplicable to concession contracts. Petitioner concessioners' association challenged § 51.3's validity. The District Court upheld the regulation, concluding that the CDA is ambiguous on whether it applies to concession contracts and finding NPS' interpretation reasonable under Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837. The District of Columbia Circuit affirmed, placing no reliance on Chevron, but finding NPS' reading of the CDA consistent with both the CDA and the 1998 Act.

        Held:

        The controversy is not yet ripe for judicial resolution. Determining whether administrative action is ripe requires evaluation of (1) the issues' fitness for judicial decision and (2) the hardship to the parties of withholding court consideration. Abbott Laboratories v. Gardner, 387 U.S. 136, 149. Regarding the hardship inquiry, the federal respondents concede that, because NPS has no delegated rulemaking authority under the CDA, § 51.3 is not a legislative regulation with the force of law. And their assertion that § 51.3 is an interpretative regulation advising the public of the agency's construction of the statutes and rules which it administers is incorrect, as NPS is not empowered to administer the CDA. That task rests with agency contracting officers and boards of contract appeals, as well as the federal courts; and any authority regarding the agency boards' proper arrangement belongs to the Administrator for Federal Procurement Policy. Consequently, § 51.3 is nothing more than a general policy statement designed to inform the public of NPS' views on the CDA's proper application. Thus, § 51.3 does not create "adverse effects of a strictly legal kind," which are required for a hardship showing. Ohio Forestry Assn., Inc. v. Sierra Club, 523 U.S. 726, 733. Moreover, § 51.3 does not affect a concessioner's primary conduct, e. g., Toilet Goods Assn., Inc. v. Gardner, 387 U.S. 158, 164,

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as it leaves the concessioners free to conduct its business as it sees fit. Moreover, nothing in the regulation prevents concessioners from following the procedures set forth in the CDA once a dispute over a concession contract actually arises. This Court has previously found that challenges to regulations similar to § 51.3 were not ripe for lack of a hardship showing. See, e. g., id., at 161-162. Petitioner's contention that delaying judicial resolution of the issue will cause real harm because the CDAs applicability vel non is a factor taken into account by a concessioner preparing its bids is unpersuasive. Mere uncertainty as to the validity of a legal rule does not constitute a hardship for purposes of the ripeness analysis. As to whether the issue here is fit for review, further factual development would "significantly advance [this Court's] ability to deal with the legal issues presented," Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 82, even though the question is "purely legal" and § 51.3 constitutes "final agency action" under the Administrative Procedure Act, Abbott Laboratories, supra, at 149. Judicial resolution of the question presented here should await a concrete dispute about a particular concession contract. Pp. 807-812.

282 F.3d 818, vacated and remanded.

        Kenneth S. Getter argued the cause for petitioner. With him on the briefs were Richard B. Katskee and David M. Gossett. Robert R. Gasaway and Ashley C. Parrish filed briefs for Xanterra Parks & Resorts, LLC, respondent under this Court's Rule 12.6, urging reversal.

        John P. Elwood argued the cause for the federal respondents. With him on the briefs were Solicitor General Olson, Assistant Attorney General McCallum, Deputy Solicitor General Clement, and Barbara C. Biddle.

        THOMAS, JUSTICE

        Petitioner, a nonprofit trade association that represents concessioners doing business in the national parks, challenges a National Park Service (NPS) regulation that purports

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to render the Contract Disputes Act of 1978 (CDA), 92 Stat. 2383, 41 U.S.C. § 601 et seq., inapplicable to concession contracts. We conclude that the controversy is not yet ripe for judicial resolution.

        I

        The CDA establishes rules governing disputes arising out of certain Government contracts.[1] The statute provides that these disputes first be submitted to an agency's contracting officer. § 605. A Government contractor dissatisfied with the contracting officer's decision may seek review either from the United States Court of Federal Claims or from an administrative board in the agency. See §§ 606, 607(d), 609(a). Either decision may then be appealed to the United States Court of Appeals for the Federal Circuit.[2] See 28 U.S.C. § 1295; 41 U.S.C. § 607(g).

        Since 1916 Congress has charged NPS to "promote and regulate the use of the Federal areas known as national parks," "conserve the scenery and the natural and historic objects and the wild life therein," and "provide for [their] enjoyment [in a way that] will leave them unimpaired for the enjoyment of future generations." An Act To establish a National Park Service, 39 Stat. 535, 16 U.S.C. § 1. To make visits to national parks more enjoyable for the public, Congress authorized NPS to "grant privileges, leases, and permits for the use of land for the accommodation of visitors."

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§ 3, 39 Stat. 535. Such "privileges, leases, and permits" have become embodied in national parks concession contracts.

        The specific rules governing national parks concession contracts have changed over time. In 1998, however, Congress enacted the National Parks Omnibus Management Act of 1998 (1998 Act or Act), Pub. L. 105-391, 112 Stat. 3497 (codified with certain exceptions in 16 U.S.C. §§ 5951-5966), establishing a new and comprehensive concession management program for national parks. The 1998 Act authorizes the Secretary of the Interior to enact regulations implementing the Act's provisions, § 5965.

        NPS, to which the Secretary has delegated her authority under the 1998 Act, promptly began a rulemaking proceeding to implement the Act. After notice and comment, final regulations were issued in April 2000. 65 Fed. Reg. 20630 (2000) (codified in 36 CFR pt. 51). The regulations define the term "concession contract" as follows:

"A concession contract (or contract) means a binding written agreement between the Director and a concessioner .... Concession contracts are not contracts within the meaning of 41 U.S.C. 601 et seq. (the Contract Disputes Act) and are not service or procurement contracts within the meaning of statutes, regulations or policies that apply only to federal service contracts or other types of federal procurement actions."[3] 36 CFR § 51.3 (2002).

        Through this provision NPS took a position with respect to a longstanding controversy with the Department of Interior's Board of Contract Appeals (IBCA). Beginning in 1989, the IBCA ruled that NPS concession contracts were subject to the CDA, see R & R Enterprises, 89-2 B. C. A., ¶ 21708, pp. 109145-109147 (1989), and subsequent attempts by NPS to convince the IBCA otherwise proved unavailing, National

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Park Concessions, Inc., 94-3 B. C. A., ¶ 27104, pp. 135096-135098 (1994).

        II

        Petitioner challenged the validity of § 51.3 in the District Court for the District of Columbia. Amfac Resorts, L. L. C. v. United States Dept. of Interior, 142 F.Supp.2d 54, 80-82 (2001). The District Court upheld the regulation, applying the deference principle of Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The court concluded that the CDA is ambiguous on whether it applies to concession contracts and found NPS' interpretation of the CDA reasonable. 142 F.Supp. 2d, at 80-82.

        The Court of Appeals for the District of Columbia Circuit affirmed, albeit on different grounds. Amfac Resorts, L. L. C. v. United States Dept. of Interior, 282 F.3d 818, 834-835 (2002). Recognizing that NPS "does not administer the [CDA], and thus may not have interpretative authority over its provisions," the court placed no reliance on Chevron but simply "agree[d]" with NPS' reading of the CDA, finding that reading consistent with both the CDA and the 1998 Act. 282 F.3d, at 835. We granted certiorari to consider whether the CDA applies to contracts between NPS and concessioners in the national parks. 537 U.S. 1018 (2002). Because petitioner has brought a facial challenge to the regulation and is not litigating any concrete dispute with NPS, we asked the parties to provide supplemental briefing on whether the case is ripe for judicial action. Tr. of Oral Arg. 62.

        III

        Ripeness is a justiciability doctrine designed "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the

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challenging...

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