67 F.3d 1480 (9th Cir. 1995), 93-55629, Lake Mohave Boat Owners Ass'n v. National Park Service

Docket Nº:93-55629, 93-55759 and 93-55875.
Citation:67 F.3d 1480
Party Name:D.A.R. 14,011 LAKE MOHAVE BOAT OWNERS ASSOCIATION, Plaintiff-Appellee-Cross-Appellant, v. NATIONAL PARK SERVICE, Alan J. O'Neill, Stanley Albright, Bruce Babbitt, Secretary of the Interior, and Seven Resorts, Inc., Defendants-Appellants-Cross-Appellees.
Case Date:October 18, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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67 F.3d 1480 (9th Cir. 1995)

D.A.R. 14,011




NATIONAL PARK SERVICE, Alan J. O'Neill, Stanley Albright,

Bruce Babbitt, Secretary of the Interior, and

Seven Resorts, Inc.,


Nos. 93-55629, 93-55759 and 93-55875.

United States Court of Appeals, Ninth Circuit

October 18, 1995

Argued and Submitted Oct. 6, 1994.

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[Copyrighted Material Omitted]

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John F. Daly, Frank W. Hunger, Nora Manella and Michael Jay Singer, United States Department of Justice, Washington, DC; Barnet Resnick and Catherine T. Fair, White, Clinebell & Resnick, Newport Beach, California, for defendants-appellants-cross-appellees.

Roger N. Golden, Beverly Hills, California, for plaintiff-appellee-cross-appellant.

Appeals from the United States District Court for the Central District of California.

Before: D.W. NELSON, NORRIS, and BOGGS, [*] Circuit Judges.

BOGGS, Circuit Judge.

The National Park Service (NPS) and Seven Resorts, Inc. (SRI) appeal from the district court's grant of summary judgment in favor of the Lake Mohave Boat Owners Association (LMBOA). The district court held that NPS violated the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552, because NPS did not publish in the Federal Register its rate-setting guidelines for marinas that operate in national parks. The district court also found that NPS violated LMBOA's due process rights by not providing it with notice and an opportunity to comment on rate changes. The court voided the rate increase for the Lake Mohave Resort marina, operated by SRI, and awarded restitution jointly against both NPS and SRI for $258,093. NPS and SRI appeal these rulings. LMBOA cross-appeals the district court's finding that it is not entitled to damages because the government had not waived sovereign immunity.

We hold that LMBOA lacked standing to bring a claim for restitution on behalf of its members. We also hold, for purposes of our review of the district court's award of attorney's fees that NPS was substantially justified in its position that it did not violate federal law when it failed to publish in the Federal Register the guidelines manual it used to set marina rates. Furthermore, constitutional due process guarantees do not require NPS to conduct a hearing before changing marina rental rates. We reverse and remand to the district court, to determine the issue not ruled on below of whether NPS acted arbitrarily and capriciously, in violation of its rent-setting regulations, in approving the rent increase. 1


LMBOA is a non-profit association of boat owners, each of whom pays monthly rent for boat slips at SRI's Lake Mohave Resort concession. Under its concession contract with NPS, SRI must obtain approval of its boat slip rental rates from NPS. NPS approved the first rent increase at issue in this case in January 1988, raising the rental rate from $4.00 to $5.50 per foot, based on length of boat or length of slip, whichever was greater. This increase was allegedly based upon a study of rates at comparable marinas.

Initially, LMBOA contended that the marinas that NPS used to justify the increase were not comparable to the Lake Mohave marina, and that NPS had not followed 16 U.S.C. Sec. 20b(c) 2 or the NPS procedures set forth in chapter 18 of NPS-48. 3 LMBOA claims that rates at truly comparable marinas

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are $3.31 to $3.83 per foot, based on its own comparability study conducted in May 1988. NPS conducted another comparability study in October 1988, and in March 1989 announced that comparable fees were between $4.00 and $4.50 per foot.

LMBOA asked for a rate rollback, which NPS refused in July 1989. NPS then conducted a more extensive comparability study, which included data from Lake Shasta, a marina on federal land. That study yielded a "comparable" rate of $5.46. LMBOA asserts that the method used by NPS to cover the per-slip rental rates at Lake Shasta to per-foot rental rates as used at Lake Mohave inflated the "comparable" rental rate. LMBOA claims that the NPS incorrectly assumed that the per-slip rate at Lake Shasta was for the use of 15-foot boats, because the boats generally in use at Lake Shasta are much larger than at Lake Mohave. LMBOA contends that the Lake Shasta marina was inappropriate for comparison purposes because it is located on federal land.

LMBOA filed suit in March 1990 on behalf of its members. It attacked both the procedures NPS followed in adopting its guidelines, and the methods used to calculate the Lake Mohave rent increases. LMBOA argued that any rent increase required notice and a hearing under the Administrative Procedure Act (APA), 5 U.S.C. Sec. 553, and under the due process guarantees of the Fifth Amendment. LMBOA also claimed that the Freedom of Information Act public information requirements, 5 U.S.C. Sec. 552, required NPS to publish NPS-48 in the Federal Register. Also, LMBOA claimed that calculations in the NPS comparability study were flawed. LMBOA sought restitution of excess rents paid and an injunction to prevent SRI from collecting the rent increase. LMBOA also sought a declaratory judgment that NPS approved rent increases in violation of the APA, performed an inaccurate comparability study to justify the increase, and must promulgate regulations to establish the appropriate method to cover per-slip rates to per-foot rates. LMBOA sought aggregate damages exceeding $100,000 plus interest.

Both parties moved for summary judgment. NPS argued that the comparability requirement was imposed by statute, 16 U.S.C. Sec. 20b, and that the management policies used to manage concessions and contained in NPS-48 were developed after seeking public comment through a published notice in the Federal Register. 41 Fed.Reg. 37622 (1976) (announcing annual review of management policies). The standard language in concession contracts such as the Lake Mohave contract has been published in the Federal Register. 46 Fed.Reg. 14460, 14465 (1981) (publication of changes to standard NPS concession contract). Because NPS-48 contained information that had either been published in the Federal Register via these documents, or was available to the public on request, NPS argued that Sec. 552 did not require publication of NPS-48 in the Federal Register.

The district court granted LMBOA's motion for summary judgment, and held that Sec. 552 required NPS to publish NPS-48 in the Federal Register. The court also found that the procedural due process guarantees of the Fifth Amendment required NPS to adopt procedures to allow affected parties an opportunity to be heard when NPS sets rates, and that NPS did not have such procedures in place. The district court declared the rate increases void, enjoined NPS from collecting the increase, and granted LMBOA restitution and damages. The district court later amended this judgment to reflect the second NPS rate increase effective February 1991, and the court limited LMBOA's recovery to restitution because the government had not waived sovereign immunity. The court did not include injunctive or declaratory relief in this amended judgment. Also, the court did not rule on LMBOA's claim that NPS's application of its comparability rules violated applicable rent-setting regulations. The court awarded LMBOA attorney's fees of $34,782 under the Equal Access to Justice Act, finding that NPS's position was not substantially justified.


LMBOA argues as a preliminary matter that the district court's jurisdiction over this case was based in part on 28 U.S.C. Sec. 1346 (the Little Tucker Act), and therefore proper appellate jurisdiction lies exclusively with the Federal Circuit. 28 U.S.C. Sec. 1295

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(exclusive Federal Circuit jurisdiction includes "appeal of a final decision of a district court ... if the jurisdiction of that court was based, in whole or in part, on section 1346...."); United States v. Hohri, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). LMBOA argues that its members' due process rights have been violated by the federal government and each member has suffered damages of less than $10,000. Thus, LMBOA claims this action meets the requirements of the Little Tucker Act, and an appeal can be brought only in the Federal Circuit.

LMBOA's argument runs counter to well-established case law. The Little Tucker Act, 28 U.S.C. Sec. 1346, provides district courts with concurrent jurisdiction with the United States Court of Federal Claims for claims of under $10,000 for which, with minor exceptions, jurisdiction is available under the Tucker Act, 28 U.S.C. Sec. 1491. 4 To determine whether the Federal Circuit has exclusive jurisdiction of this claim on appeal under the Little Tucker Act, we must determine whether this claim falls within Tucker Act jurisdiction.

To determine Tucker Act jurisdiction, "one must always ask ... whether the ... legislation which the claimant cites can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained." Bowen v. Massachusetts, 487 U.S. 879, 907 n. 42, 108 S.Ct. 2722, 2738, n. 42, 101 L.Ed.2d 749 (1988) (quoting Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1009 (1967)); see also North Star Alaska v. United States, 9 F.3d 1430 (9th Cir.1993) (en banc), cert. denied, --- U.S. ----, 114 S.Ct. 2706, 129 L.Ed.2d 834 (1994). The Court in Bowen discussed the Back Pay Act, and statutes that provided compensation to prisoners of war, as examples of laws that trigger Tucker Act jurisdiction. Bowen, 487 U.S. at 907, 108 S.Ct. at 2738 (citing United States v. Testan, 424 U.S. 392, 405, 96 S.Ct. 948, 956, 47 L.Ed.2d 114 (1976) (Back Pay Act); Bell v. United States, 366 U.S. 393, 398, 81 S.Ct. 1230, 1233, 6 L.Ed.2d 365 (1961) (prisoner of war compensation)). The Tucker Act also confers jurisdiction over claims "concerned solely...

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