Bos. Redevelopment Auth. v. Nat'l Park Serv.

• Decision Date: 23 September 2016
• Docket Number: No. 15–2270,15–2270
• Citation: 838 F.3d 42
• Parties: Boston Redevelopment Authority, Plaintiff, Appellant, v. National Park Service and Sally Jewell, as Secretary of the United States Department of the Interior, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

838 F.3d 42

Boston Redevelopment Authority, Plaintiff, Appellant,

v.National Park Service and Sally Jewell, as Secretary of the United States Department of the Interior, Defendants, Appellees.

No. 15–2270

United States Court of Appeals, First Circuit.

September 23, 2016

Denise A. Chicoine , with whom Edward S. Englander , Shannon F. Slaughter , and Englander, Leggett & Chicoine P.C. , Boston, MA, were on brief, for appellant.

Christine J. Wichers , Assistant United States Attorney, with whom Carmen M. Ortiz , United States Attorney, was on brief, for appellees.

Before Howard, Chief Judge, Selya and Kayatta, Circuit Judges.

SELYA

, Circuit Judge.

This is a rara avis: a case that implicates the Land and Water Conservation Fund (LWCF), a fund administered under the eponymous and seldom litigated Land and Water Conservation Fund Act (LWCF Act), 54 U.S.C. §§ 200301

–200310. The underlying controversy pits two government agencies against each other. The district court resolved this clash in favor of the defendants, the National Park Service (NPS)—a bureau within the United States Department of the Interior—and Sally Jewell, in her capacity as Secretary of the Interior.¹

See Bos. Redev. Auth. v. Nat'l Park Serv.(BRA I), 125 F.Supp.3d 325, 337 (D. Mass. 2015). Concluding, as we do, that NPS acted neither arbitrarily nor capriciously in making the determination that the Boston Redevelopment Authority (BRA) challenges, we affirm.

I. BACKGROUND

This tug-of-war involves a prime piece of real estate jutting into Boston Harbor. This piece of real estate, called Long Wharf, is currently the site of a hotel and restaurant, and it serves as a launch site for a variety of harbor tours, whale watches, and passenger boats. An open pavilion stands at the northern side of the wharf. The BRA, a public body created pursuant to state statutory law, see Mass. Gen. Laws ch. 121B, § 4

, is tasked with pursuing urban renewal and other public development activities in the City of Boston. The BRA wishes to develop the Long Wharf pavilion for commercial purposes (specifically, an additional restaurant and bar). NPS has refused to grant the BRA permission to do so, insisting that the land remain open for recreational use.

History sheds some light on this dispute. When the BRA acquired title to Long Wharf in the 1970s, the wharf was decrepit and in need of repairs. Since then, the BRA has developed Long Wharf into a thriving waterfront venue. It improved Long Wharf using, in part, an LWCF grant made available through the LWCF Act.² See 54 U.S.C. § 200305(a)

.

The LWCF Act provides “financial assistance” to states for “[p]lanning,” the “[a]cquisition of land, water, or interests in land or water,” and related “development” all for “outdoor recreation” purposes. Id. This financial assistance comes with strings attached: Section 6 of the LWCF Act forbids grant recipients from converting “property acquired or developed” with LWCF assistance to “other than public outdoor recreation use” without prior NPS approval. Id.§ 200305(f)(3). A parcel of land acquired or developed with the aid of an LWCF grant becomes a so-called Section 6(f) Area and—absent agency consent—must be preserved in perpetuity. See id.; see also 36 C.F.R. § 59.3

. A funding recipient may convert the Section 6(f) Area only if it furnishes substitute “recreation properties of at least equal fair market value and of reasonably equivalent usefulness and location.” 54 U.S.C. § 200305(f)(3) ; see 36 C.F.R. § 59.3(a).

A party seeking an LWCF grant must submit a detailed application that includes, among other things, a proposal explaining the project type, scale, and expected cost. According to the NPS manual in effect when the BRA's application was submitted, this proposal also must contain a “project boundary map” identifying the Section 6(f) Area. That map must limn the area in sufficient detail to adequately identify the property that is subject to Section 6(f) restrictions. The manual suggests that such a map might include a metes and bounds description of the protected area, a survey of that area, or a description of adjoining waterways or other natural landmarks.

We move now from the general to the specific. The LWCF Act authorizes states, but not other governmental units, to apply for LWCF funding. See 54 U.S.C. §§ 200301(2)

, 2003005(a). Consequently, local redevelopment agencies interested in receiving LWCF grants apply through the state in which they are located. So it was here: in March of 1980, the BRA applied to NPS, through the Commonwealth of Massachusetts (the Commonwealth),³ for an $825,000 grant to redevelop Long Wharf. NPS approved the application in the spring of 1981. Serial project agreements were thereafter executed (one between NPS and the Commonwealth and the other between the Commonwealth and the BRA). Between 1981 and 1986 (when the grant was closed), the BRA received almost $800,000 in LWCF monies.

The facts that we have set forth above are uncontroverted. Looking back, however, the parties dispute whether a particular piece of real estate on the northern side of Long Wharf (which we shall call the Pavilion area) is subject to Section 6(f) restrictions. We pause here to describe the provenance of the dispute.

In 2006, the BRA began planning to redevelop and expand the Pavilion area to accommodate a new waterfront restaurant and bar. This embryonic venture came to NPS's attention in 2009, and NPS instructed the Commonwealth to research whether the contemplated project fell within the Section 6(f) boundaries established in 1980. Relying on a 1983 map in its files, the Commonwealth determined that the Pavilion area was outside the Section 6(f) boundaries. NPS acquiesced and, as a result, the Commonwealth informed the BRA that the project could continue.

In 2012, however, correspondence from retired NPS employees prompted NPS to revisit its conclusion. Upon further investigation, NPS discovered in its files a map hand-labeled “6f boundary map 3/27/80.” This 1980 map, which the parties agree a NPS employee labeled, depicted a Section 6(f) Area encompassing the entire northern side of Long Wharf (including the Pavilion area). NPS staff noted that the 1980 map was consistent with other materials in the agency's files describing the Long Wharf project and determined that the 1980 map was the official project boundary map. NPS notified the Commonwealth of this determination. The Commonwealth, in turn, told the BRA that it could not convert the Pavilion area into a restaurant and bar without further NPS approval.

The matter did not end there. In April of 2014, representatives of the BRA, the Commonwealth, and NPS met to discuss NPS's determination and to give the BRA an opportunity to present its contrary view. The BRA distributed photographs, maps, and reports, and the parties toured Long Wharf on foot. NPS was unmoved: that same month, it sent a letter to the Commonwealth confirming its determination that the Pavilion area fell within the Section 6(f) Area. In June, NPS issued its final decision, accompanied by a detailed explanation of its reasoning.

Stymied by this untoward turn of events, the BRA sued NPS in the United States District Court for the District of Massachusetts. The BRA's complaint invoked the Administrative Procedure Act (APA), the LWCF Act, the Declaratory Judgment Act, and various state laws. After the parties completed a course of discovery designed to supplement the administrative record, cross-motions for summary judgment were filed. The district court granted NPS's motion and denied the BRA's motion. See BRA I, 125 F.Supp.3d at 337

. This timely appeal followed.

II. ANALYSIS

In some respects, this case is a riddle wrapped in an enigma. It is at least arguable that the case should be viewed as a suit upon a contract, free from the constraints of administrative law. In the district court, however, both parties eschewed that approach and treated the matter as a suit for judicial review of agency action. The district court quite properly followed the parties' lead and adjudicated the case in that manner. Recognizing that parties to a lawsuit should not normally be allowed to change horses in mid-stream, we too take the same course. We think it wise, however, to note the anomaly and to make clear that we leave open (for a case in which it is properly raised and preserved) the question of whether disputes like this should be handled as straight litigation rather than as judicial reviews of agency action.

Our adoption of the approach dictated by the parties' original positions has consequences for the standard of review. Although the district court resolved the case on cross-motions for summary judgment, the summary judgment rubric has a “special twist in the administrative law context.” Assoc'd Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997)

. In that context, a motion for summary judgment is simply a vehicle to tee up a case for judicial review and, thus, an inquiring court must review an agency action not to determine whether a dispute of fact remains but, rather, to determine whether the agency action was arbitrary and capricious. See Mass. Dep't of Pub. Welfare v. Sec'y of Agric., 984 F.2d 514, 526 (1st Cir. 1993) ; see also Sig Sauer, Inc. v. Brandon, 826 F.3d 598, 601 (1st Cir. 2016) (citing, inter alia, 5 U.S.C. § 706(2)(A) ); BRA I, 125 F.Supp.3d at 330–31 (employing this paradigm).

An agency action is arbitrary and capricious when the agency “relied on improper factors, failed to consider pertinent aspects of the problem, offered a rationale contradicting the evidence before it, or reached a conclusion so implausible that it cannot be attributed to a difference of opinion or the application of agency expertise.” Assoc'd Fisheries, 127 F.3d at 109

. Even if an inquiring court disagrees with the agency's conclusions, it “cannot substitute its judgment for that of the agency.” Id. Because we, like the district court, are bound to apply this...