Lewis v. Babbitt, 92-8039

Decision Date12 July 1993
Docket NumberNo. 92-8039,92-8039
Citation998 F.2d 880
PartiesWilliam Britt LEWIS, d/b/a Triangle Firewood Co., Plaintiff-Appellant, v. Bruce BABBITT, * Secretary of the United States Department of the Interior; United States Department of the Interior; National Park Service; James Ridenour, Director, National Park Service; Lee Davis, Director of Concessions; National Park Service; Ronald Everhart, Regional Director of Concessions; Robert Barbee, Superintendent, Yellowstone National Park; Steve Martin, Chief of Concessions, Yellowstone National Park, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Kyle Anne Gray (Marcelle Shoop, of Holland & Hart, Cheyenne, WY, with her on the briefs), of Holland & Hart, Billings, MT, for plaintiff-appellant.

Edward A. Boling (Vicki A. O'Meara, and Anne S. Almy, of Environment and Natural Resources Div., U.S. Dept. of Justice, Washington, DC, with him on the brief), of Environment and Natural Resources Div., U.S. Dept. of Justice, Washington, DC, for defendants-appellees.

Before ANDERSON, RONEY, ** and TACHA, Circuit Judges.

TACHA, Circuit Judge.

Mr. Lewis appeals a district court order granting the appellees' motion for summary judgment. Lewis was the firewood concessioner in Yellowstone National Park from 1976 to 1989. In 1989, the National Park Service ("NPS") solicited proposals for the firewood concession permit for the next four-year period. NPS received two proposals, including Lewis's, and ultimately decided to award the permit to Firebox Inc. ("Firebox") after concluding that Lewis made material misrepresentations regarding financing and that he failed to demonstrate the ability to finance his amended proposal. On appeal, Lewis argues that the NPS misconstrued the National Park System Concessions Policy Act, 16 U.S.C. §§ 20-20g, and that its decision not to negotiate a new permit with Lewis was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I.

On appeal, we review the grant of summary judgment de novo, using the same standards applied by the district court. Osgood v. State Farm Mut. Auto. Ins. Co., 848 F.2d 141, 143 (10th Cir.1988). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986).

We review agency action to determine whether it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). We review an agency's interpretation of an ambiguous statute to determine whether it is "rational and consistent with the statute." Aulston v. United States, 915 F.2d 584, 589 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2011, 114 L.Ed.2d 98 (1991) (internal quotations omitted). An agency's interpretation of its own regulations is entitled to great deference and will be rejected only if it is "unreasonable, plainly erroneous, or inconsistent with the regulation's plain meaning." Bar MK Ranches v. Yuetter, 994 F.2d 735, 738 (10th Cir.1993).

Judicial review under these standards is generally based on the administrative record that was before the agency at the time of its decision, id., and reviewing courts may not rely on litigation affidavits that provide post hoc rationalizations for the agency's action, see Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971). In order to facilitate judicial review, however, a reviewing court may obtain affidavits from the agency that provide additional explanations of the reasons for its decision. Camp v. Pitts, 411 U.S. 138, 142-43, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). We find that the district court properly relied on the agency's affidavits by using them to explain the administrative record rather than as a substitute for it.

II.

Lewis argues that the NPS acted unreasonably by concluding that Firebox's proposal was responsive to the Statement of Requirements ("SOR") for the permit and by requiring Lewis, who had a right of preference to the permit, to match Firebox's allegedly unresponsive proposal. 1 We reject his argument.

The SOR for the firewood concession permit states:

To be responsive, proposals must be accompanied by a signed letter and must contain sufficient information to convince the Secretary acting through the Superintendent that the proponent meets the principal and secondary factors specified in the following paragraph. All responsive proposals will be further reviewed and evaluated to determine which is the best overall.

(emphasis added). As the emphasized language indicates, this provision does not require strict compliance with the SOR, but rather leaves the responsiveness determination to the agency's discretion. The NPS found that, although neither Firebox's proposal nor Lewis's proposal complied exactly with the SOR's requirements, they both contained sufficient information to be deemed responsive. We hold that this conclusion is not arbitrary, capricious, unlawful, or an abuse of discretion. We therefore need not decide whether a concessioner with a right of preference may be required to match an unresponsive proposal.

Lewis next argues that the NPS arbitrarily and capriciously determined that his amended proposal failed to satisfy the SOR's financial requirements. Based on our review of evidence in the...

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