High Point, LLLP v. Nat'l Park Serv.

• Decision Date: 08 March 2017
• Docket Number: No. 15-11825,15-11825
• Citation: 850 F.3d 1185
• Parties: HIGH POINT, LLLP, Plaintiff–Appellant v. NATIONAL PARK SERVICE, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

850 F.3d 1185

HIGH POINT, LLLP, Plaintiff–Appellant
v.
NATIONAL PARK SERVICE, et al., Defendants–Appellees.

No. 15-11825

United States Court of Appeals, Eleventh Circuit.

March 8, 2017

R. Todd Silliman, Dentons US, LLP, Atlanta, GA, Mark David Johnson, for Plaintiff–Appellant.

Michael Thomas Gray, U.S. Department of Justice c/o US Army Corps of Engineers, Office of Counsel, Jacksonville, FL, R. Brian Tanner, Sanjay S. Karnik, Edward J. Tarver, U.S. Attorney's Office, Savannah, GA, Joseph H. Kim, U.S. Department of Justice, Environment & Natural Res. Div., Washington, DC, for Defendants–Appellees.

Before TJOFLAT and ROSENBAUM, Circuit Judges, and KAPLAN,^* District Judge.

ROSENBAUM, Circuit Judge:

Although Otis Redding may have enjoyed wasting time by watching ships roll into the Dock of the Bay,¹ if he were sitting on Cumberland Island's Brick-Kiln Dock, he truly would be wasting his time, waiting in vain for ships that would never come. That's because dynamic environmental forces at play on Georgia's barrier islands have caused large amounts of sediment and siltation to render the waters around Brick-Kiln Dock increasingly shallow, making the dock inaccessible to most vessels. The Candler family, which uses the dock to access property located within the boundaries of Cumberland Island National Seashore, has sought to move or extend the dock to improve its accessibility. But the National Park Service, which

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manages the seashore, has refused to allow changes to the dock in order to protect the island's wilderness character.

So the family has sued, arguing that the deed by which the Candlers conveyed the island property to the government and reserved the right to continue to use the dock permits them to relocate the dock. Alternatively, the family contends that the Park Service's denial of permission to relocate or extend the dock is arbitrary and capricious, in violation of the Administrative Procedure Act. After careful review and with the benefit of oral argument, we must conclude that "nothin's gonna change"² from the district court's decision, since neither the deed nor federal law supports the Candlers' position.

I. Background

A. Cumberland Island and High Point Compound

Cumberland Island is Georgia's largest barrier island, located off the southeast coast of the state. The island consists of uplands,³ marshlands,⁴ and various creeks. It is bounded by Cumberland Sound and the Cumberland River to the west and the Atlantic Ocean to the east. Historically, certain families used the island as an isolated vacation retreat. Among them, the Carnegie family claimed ownership of most of the island's uplands. The northernmost tract of land owned by the Carnegies was Tract 5N (also known as 5-N or N-5).

In 1930, Charles Howard Candler, Sr.—eldest son of Coca-Cola magnate Asa Candler—purchased property on the northern end of Cumberland Island in an area that came to be known as High Point. Over time, the Candlers acquired approximately 1300 acres of property on the island, including the 38-acre parcel now described as the High Point Compound (the "Compound").

In 1958, the Candler family conveyed the property's ownership to High Point, Inc., which was later succeeded by Appellant High Point, LLLP ("High Point"), a corporation made up of Candler's descendants. To permit easier access to the Compound, the Carnegie family allowed the Candlers to build Brick-Kiln Dock (the "Dock") in Tract 5N. The Dock, which extends from the uplands portion of Cumberland Island into the marshlands and, specifically, Hawkins Creek (a tributary of the Brickhill River), is roughly 3.5 miles from the Compound. See Appendix.

Although the island has an airstrip, visitors to the Compound arrive primarily by boat. When traveling to the island, the Candler family departs by boat from nearby Jekyll Harbor Marina and traverses intracoastal sounds, creeks, and rivers on its way to the Dock. The distance between Jekyll Harbor and the Dock is approximately 11.8 miles, and the journey lasts for roughly 45 minutes. Upon arrival at the Dock, travel to the Compound takes 15-20 minutes by automobile over the island's unpaved roads.

Cumberland Island has other docks managed by the National Park Service ("Park Service"), including the public Plum Orchard Dock and Sea Camp Dock. And while High Point itself owns other docks on Christmas Creek, known as Willow Dock and Cedar Dock, these do not provide deep-water access to the island.

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B. Designation as a National Seashore

Beginning in 1970, the United States, through the National Park Foundation, began acquiring land on Cumberland Island with a view towards establishing a national park. On September 29, 1970, the Foundation acquired Tract 5N from the Carnegie family's Cumberland Island Holding Company. The deed conveying Tract 5N reserved "an easement as long as [the Cumberland Island Holding Company] owns real property or an Estate for Years on Cumberland Island, Georgia, for its invitees, licensees, and assigns, to use the roads, dock, and airstrip."

In 1972, Congress established the Cumberland Island National Seashore. 16 U.S.C. §§ 459i –459i-9 (the "Seashore Act"). With respect to private property owners, the legislation authorized the Secretary of the Interior to acquire lands within the designated boundaries by purchase, donation, transfer, or exchange. 16 U.S.C. § 459i-1. In negotiating for the properties, the Secretary could allow private land owners on the island to retain "a right of use and occupancy of the property for noncommercial residential purposes" for a term of 25 years or the life of the owner. 16 U.S.C. § 459i-3(a).

The Seashore Act also required the island to be "permanently preserved in its primitive state," with the exception of development for certain public recreation activities. 16 U.S.C. § 459i-5(b).

Finally, as relevant here, the Seashore Act directed the Secretary to recommend to the President the suitability of the national seashore for designation as wilderness under the Wilderness Act of 1964, 16 U.S.C. § 1132. The Wilderness Act of 1964, in turn, establishes a system for preserving federal lands in their "primeval" and "undeveloped" state, "untrammeled by man." 16 U.S.C. § 1131. The statute, which allows Congress to designate areas as wilderness on the recommendation of the President, 16 U.S.C. § 1132, requires wilderness areas to be administered "in such manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas, the preservation of their wilderness character, and for the gathering and dissemination of information regarding their use and enjoyment as wilderness." 16 U.S.C. § 1131(a).

C. Conveyance of High Point's Property to the United States

Since Cumberland Island's designation as a national seashore, the United States has acquired title to a majority of the privately owned land on the island. With respect to High Point, negotiations began in the early 1970s and culminated years later in 1982, with High Point's sale of and corresponding conveyance of fee simple title to its Cumberland Island property.⁵

In furtherance of this transaction, before the end of 1981, the parties executed an Option Agreement for the sale of High Point's property subject to the terms and conditions of an attached Purchase and Sale Agreement. The Purchase and Sale Agreement specifically conditioned sale on the reservation of a right, free from interference, "to continue to use the area presently known as the Brick-Kiln Dock located on Hawkins Creek in tract N-5 Cumberland Island, Georgia." Beyond reserving use of the Brick-Kiln Dock, the Purchase and Sale Agreement also reserved to High Point rights to use the Christmas Creek docks, the airstrip, and the island's roads as well as "easements and rights of access, ingress and egress

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by water and air as presently existing and used by [High Point]." The duration of the reserved rights extended to the death of the last surviving named shareholder of the corporation, who is currently roughly 35 years old.

In anticipation of the acquisition, the Park Service commissioned an appraisal of the property. The appraiser concluded that "use of [the Dock], airstrip, main road and beach road, as well as exclusive use of the beach cabana, are necessary to the full use and enjoyment of the property as it exists today." Without the airstrip or Dock, the appraiser determined, restoring satisfactory all-weather access to High Point's property would require "an extensive investment."

On January 20, 1982, High Point executed a warranty deed conveying its property to the United States. The deed warranted title to all of the property above the high-water mark "but expresse[d] no warranty as to the title to those lands lying between the high and low water marks in the above-described lands, (including all marsh, beach, and tidal branches, rivers, streams, oceans, sounds, and other bodies of water), and of title to the land underlying said bodies of water."

Among other rights, the...