Forsyth County v. United States Army Corps of Engineers

• Court: U.S. Court of Appeals — Eleventh Circuit
• Writing for the Court: PRYOR, Circuit Judge:
• Citation: Forsyth County v. United States Army Corps of Engineers, 633 F.3d 1032 (11th Cir. 2011)
• Decision Date: 14 February 2011
• Docket Number: No. 10–10279.,10–10279.
• Parties: FORSYTH COUNTY, a political subdivision of the State of Georgia, Plaintiff–Appellant,v.UNITED STATES ARMY CORPS OF ENGINEERS, Colonel Byron G. Jorns, Mobile District Engineer, in his official capacity, Brigadier General Joseph Schroedel, South Atlantic Division Commander, in his official capacity, Major General Don T. Riley, Director of Civil Works, in his official capacity, Lieutenant General Robert L. Van Antwerp, Commander and Chief of Engineers, in his official capacity, et al., Defendants–Appellees.

633 F.3d 1032

22 Fla. L. Weekly Fed. C 1785

FORSYTH COUNTY, a political subdivision of the State of Georgia, Plaintiff–Appellant,

v.UNITED STATES ARMY CORPS OF ENGINEERS, Colonel Byron G. Jorns, Mobile District Engineer, in his official capacity, Brigadier General Joseph Schroedel, South Atlantic Division Commander, in his official capacity, Major General Don T. Riley, Director of Civil Works, in his official capacity, Lieutenant General Robert L. Van Antwerp, Commander and Chief of Engineers, in his official capacity, et al., Defendants–Appellees.

No. 10–10279.

United States Court of Appeals, Eleventh Circuit.

Feb. 14, 2011.

Ken E. Jarrard, Matthew L. Mattila, Jarrard & Davis, LLP, Cumming, GA, Thomas Richard Mondelli, Atlanta, GA, for Plaintiff–Appellant.M. Alice Thurston, Robert H. Oakley, Dept. of Justice, Environment & Natural Resources Div., Washington, DC, Marc Givhan, Atty. General's Office, Montgomery, AL, Sharon Douglas Stokes, Melaine A. Williams, Atlanta, GA, Myles E. Eastwood, Atlanta, GA, for Defendants–Appellees.Appeal from the United States District Court for the Northern District of Georgia.Before WILSON and PRYOR, Circuit Judges, and BUCKLEW,^* District Judge.PRYOR, Circuit Judge:

This appeal from the denial of a preliminary injunction requires us to determine whether an evaluation of competing proposals for the lease of Bethel Park on Lake Sydney Lanier in Forsyth County, Georgia, by the United States Army Corps of Engineers is subject to a right of first refusal for a local government and, if not, whether the weight accorded to a preference for the lease is otherwise subject to judicial review under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. The Flood Control Act of 1944 permits the Corps to grant leases of public parks and recreational facilities at water resource development projects on terms and for purposes that it determines are “reasonable in the public interest” and requires the Corps to give a preference to “local governmental agencies,” among others. 16 U.S.C. § 460d. Forsyth County, Georgia, and the Young Men's Christian Association of Greater Atlanta submitted competing proposals to lease Bethel Park. After the Corps evaluated each proposal, it awarded the lease to the Association because the Corps determined that the award would better serve the public interest to a degree sufficient to overcome the preference owed to the County under section 460d. The County filed a complaint that the Corps had violated the preference clause in section 460d and moved for a preliminary injunction to prevent the Corps from leasing the park to the Association. The district court denied the motion on the ground that the County was unlikely to succeed on the merits of its complaint. Because section 460d does not create a right of first refusal for preference entities and the weight accorded to the preference for a lease is “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), and is not subject to judicial review, we affirm.

I. BACKGROUND

The Flood Control Act of 1944 empowers “[t]he Chief of Engineers, under the supervision of the Secretary of the Army, ... to construct, maintain, and operate public park and recreational facilities at water resource development projects under the control of the Department of the Army.” 16 U.S.C. § 460d. The Act also empowers the Secretary of the Army “to grant leases of lands, including structures or facilities thereon, at water resource development projects for such periods, and upon such terms and for such purposes as he may deem reasonable in the public interest.” Id. The Act conditions the grant of a lease on several additional considerations, one of which is a preference for certain entities:

[P]reference shall be given to federally recognized Indian tribes and Federal, State, or local governmental agencies, and licenses or leases where appropriate, may be granted without monetary considerations, to such Indian tribes or agencies for the use of all or any portion of a project area for any public purpose, when the Secretary of the Army determines such action to be in the public interest, and for such periods of time and upon such conditions as he may find advisable[.]

Id. The Secretary of the Army has also promulgated a regulation that mirrors the language of section 460d:

The Secretary of the Army is authorized to grant leases of lands, including structures or facilities thereon, in reservoir areas for such periods and upon such terms as he may deem reasonable[.] ... [P]reference shall be given to Federal, State, or local governmental agencies, and licenses may be granted without monetary considerations to such agencies for the use of all or any portion of a reservoir area, when the Secretary of the Army determines such actions to be in the public interest, and for such periods of time and upon such conditions as he may find advisable.

33 C.F.R. § 211.6(a)(2).

Under these grants of authority, the United States Army Corps of Engineers administers 38 parks and recreational facilities on Lake Sidney Lanier in northern Georgia. Over time, the Corps has also granted 44 leases for parks and recreational facilities around the lake to various entities, public and private. These grants consist of fourteen leases to local governmental entities, including three to Forsyth County, Georgia; ten leases to the State of Georgia; eight leases to private concessionaires; and twelve leases to private organizations, including the Boys Club, the Girl Scouts, the Methodist Church, the American Legion, and the Young Men's Christian Association.

One of the parks administered by the Corps is Bethel Park, a day-use park that sits by Lake Lanier on about 62 acres. Of the 38 parks that the Corps operated in 2008, Bethel Park ranked 37th in terms of public usage. In March 2003, the Young Men's Christian Association of Greater Atlanta approached the Corps to discuss the possibility of leasing more property on Lake Lanier for a summer camp. The Association submitted a formal proposal to the Corps to lease Bethel Park in 2004, and supplemented that proposal in 2005 with a proposed master plan that detailed its development plans. The Association proposed to develop Bethel Park to provide overnight and day-use facilities for campers, including cabins, a dining hall, active recreation areas, a multi-purpose court, outdoor amphitheaters and classrooms, hiking trails, a marina, a fishing pier, and a beach area.

Forsyth County also sought leases from the Corps. In 2004, for example, the County emailed the Corps to inquire about the possibility of leasing property around Lake Lanier. As a result of this inquiry and further discussions, the Corps leased Young Deer and Charleston Parks to the County in March 2005.

In December 2005, the Corps issued a “Recreation Development Policy for Outgranted Corps Land,” a new policy governing the evaluation of proposals for recreational development of lands and waters at water resource development projects. The new policy established the following several criteria that a district team of Corps employees must follow when it “evaluate [s] requests for recreation development”:

Consistent with project purposes; Reasonable connection to the project's natural and other resources; Consistent with land use classifications and resource management objectives in the Project Master Plan (or supplement thereto); In the public interest; Justified by public demand ...; Economically viable ...; Meets the recreation demands created by the project itself while balancing natural resources requirements.

In April 2006, in a letter to the Corps, the County sought to lease 15 parks administered by the Corps, including Bethel Park. The County acknowledged that it was aware that the Corps was negotiating a lease of Bethel Park with “other entities,” but the County stated that a “local government would have ‘first option’ should the Corps ever decide to lease these parks out.” The Corps agreed to discuss leasing several of the 15 parks to the County, but informed the County that it “remain[ed] committed to ... the [Association] ... for the operation and maintenance of [Bethel Park].... [D]iscussions with the [Association] have been ongoing since early 2003.” Later that month, the Corps made available to the public and requested comments on a draft Environmental Assessment and Master Development Plan for Bethel Park prepared by the Association. The County submitted a comment in which it argued that it “was not given a right of first refusal or ‘preference’ with respect to acquiring Bethel Park as required by federal law.”

In September 2006, the County renewed its request to lease Bethel Park from the Corps. The Corps invited the County to submit a written proposal with supporting documentation, including a development plan and a market feasibility study. The Corps also invited the Association to submit a renewed proposal with supporting documentation. In February 2007, the County and the Association submitted their proposals to the Corps. The proposal of the Association essentially mirrored its previous proposal. The County proposed an overnight and day-use facility, with camping sites for recreational vehicles and tent campers, a day-use area, a boat ramp and trailer parking area, a 90–space parking area, comfort facilities, an environmental education area, a beach area, and walking trails. The Corps evaluated both proposals and released a new Environmental Assessment for public comment in January 2008 that discussed the environmental impacts of leasing Bethel Park “to a yet undetermined non-Federal entity.” The Corps received over 4,900 comments on the Assessment, most of which were letters of support for either the Association or the County.

On June 5, 2008, the Corps announced in a news release that it planned to lease Bethel Park to the Association. The Corps explained that it had “conducted an objective and very detailed evaluation of...