78 F.3d 1360 (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:78 F.3d 1360
Party Name:96 Daily Journal D.A.R. 2855 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

Page 1360

78 F.3d 1360 (9th Cir. 1995)

96 Daily Journal D.A.R. 2855




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.

Amended March 12, 1996.

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[Copyrighted Material Omitted]

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John F. Daly, Frank W. Hunger, Nora Manella and Michael Jay Singer, 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.

Appeal from the United States District Court for the Central District of California, James M. Ideman, District Judge, Presiding.

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

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On October 18, 1995, this court issued its opinion in this case. Both parties filed petitions for rehearing. The petition for rehearing by Lake Mohave Boat Owners Association is denied.

In response to the petition by the Defendants-Appellants, the panel has made revisions to its original opinion, and herewith enters the attached amended opinion.


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. § 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. The court also eventually granted declaratory and injunctive relief requiring publication of the guidelines and forbidding rate increases without notice and opportunity for comment. 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 that NPS 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. § 20b(c) 2 or the NPS procedures set forth in chapter 18 of NPS-48. 3 LMBOA claims that rates at truly comparable marinas 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

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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. § 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. § 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. § 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 § 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 § 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.

After a motion by the plaintiffs and opposition from the government, on December 29, 1993 (after this appeal had been filed), the district court entered an order granting injunctive and declaratory relief as well, nunc pro tunc as of April 22, 1993 (see docket entry 179, not included in Excerpts of Record). This order declared that NPS had violated FOIA by raising rents without publishing NPS-48 and enjoined NPS from raising rents without providing notice and opportunity for comment and without publishing Chapter 48 in the Federal Register.

The court did not rule on LMBOA's claim that NPS's application of its comparability rules violated applicable rent setting regulations. The court...

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