Mashack v. Jewell

• Citation: 149 F.Supp.3d 11
• Decision Date: 26 February 2016
• Docket Number: Civil Action No. 15-2107 (ABJ)
• Parties: Frederick Mashack, et al., Plaintiffs, v. Sally Jewell, in her official capacity as Secretary, U.S. Department of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Columbia

149 F.Supp.3d 11

Frederick Mashack, et al., Plaintiffs,

v.Sally Jewell, in her official capacity as Secretary, U.S. Department of the Interior, et al., Defendants.

Civil Action No. 15-2107 (ABJ)

United States District Court, District of Columbia.

Signed February 26, 2016

Terri Allyn Thompson, Terri A. Thompson, Esq., Washington, DC, Leah Russin, Law Office of Leah Russin, Palo Alto, CA, for Plaintiffs Sally Jewell, Robert Knox, Renee Lynch, Mike Lynch, Patrick D. Tisdale, Scot Montrey, Richard Henry, Brian Levy, Patrick Craig Muldoon and James Trainum.

Rhonda Lisa Campbell, Robin Michelle Meriweather, U.S. Attorney's Office, Washington, DC, for Defendants Sally Jewell, Jonathan B. Jarvis and Robert A. Vogel.

MEMORANDUM OPINION

AMY BERMAN JACKSON

, United States District Judge

A group of boat owners who lease slips at Buzzard Point Marina, and several of their friends, have brought this action against the Department of the Interior and individual agency and Park Service officials, challenging the closure of the marina, a National Park Service facility. Am. Compl. [Dkt. # 41]. Plaintiffs have been informed that marina concessions services will be discontinued when the current concessioner's contract expires, and that they must move their boats, but they ask the Court to declare that the Park Service has a statutory obligation to continue to operate the Washington, D.C. site. Id. They contend that the Park Service has violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.

; the National Historic Preservation Act (NHPA), 54 U.S.C. § 300101 et seq . ; the National Park Service Concessions Management Improvement Act of 1998 (Concessions Act), 54 U.S.C. §§ 101524, 101911 –101926 ; the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 –706 ; and its own regulations: 36 C.F.R. §§ 1.5 and 1.7. Am. Compl. ¶¶ 6, 81–100. The parties have filed cross-motions for summary judgment, and defendants have moved to dismiss some of plaintiffs' claims for lack of prudential standing and for failure to state a claim.

What plaintiffs seek is an order that would enable them to continue to dock their boats at the marina. They have derived considerable enjoyment from boating on the Potomac and Anacostia rivers for many years, utilizing the conveniently-located and well-priced facility at Buzzard Point that accommodates their small boats and provides the amenities they desire. Plaintiffs are understandably disappointed with the current state of affairs, and they wish to participate in the Park Service's planning process to ensure that it takes account of the longstanding use of Buzzard Point by a diverse and devoted boating community. And they are correct in their understanding that the ultimate disposition of the Park Service facility must comport with both federal environmental statutes and agency regulations.

But plaintiffs have advanced their claims in this case by conflating discrete decisions and events, misstating the significance and scope of particular record documents, and blurring the distinctions between separate statutory and regulatory regimes. When one disentangles the jumble of evolving legal theories that plaintiffs have put before the Court—as one must do to assess the validity of any individual claim—it becomes clear that the Park Service has acted in accordance with the law to date, and that many of the necessary steps have not yet been undertaken and are not yet subject to challenge.

More important, the Court cannot grant plaintiffs the remedy they seek—the right to stay at Buzzard Point—in the absence of a concessioner to operate the marina. The Court simply cannot force the government to solicit a new contract pursuant to the Concessions Act or any other statute, and that is really the beginning and end of plaintiffs' action for injunctive relief. For those reasons and the reasons set forth below, the count based on the Concessions Act will be dismissed, plaintiffs' motion for summary judgment on the other counts will be denied, and defendants' motion for summary judgment will be granted. But as the agency itself has acknowledged, the Park Service will be required to engage in the applicable NEPA/NHPA analysis before disturbing the physical environment at the marina or closing it permanently, and it will need to generate an appropriate record in accordance with those statutes and its own regulations, including 36 C.F.R. § 1.5

, as it moves forward with future plans for the location.

BACKGROUND

I. Factual Background

Buzzard Point Marina is located at 2158 Half Street Southwest in Washington, D.C. Mem. in Supp. of Defs.' Mot. for Summ. J. [Dkt. # 23] (“Defs.' Mem.”) at 1. The marina has been operated “for decades” by a Park Service concessioner, Buzzard Point Boatyard Corporation, id. at 6, most recently pursuant to Park Service contract CC-NACE003-06, which expired on December 31, 2011. See, e.g. , Administrative Record (“AR”)¹ 0343. The contract was extended on three occasions, each time for a period of one year, culminating in a final extension through December 31, 2014. AR 0122; AR 0269. After that contract expired, Buzzard Point Boatyard Corporation continued to operate the marina under temporary concession contract TC-NACE003-15, which was set to expire by its own terms on December 31, 2015. AR 0001–80.

Between 2013 and 2015, the Park Service considered several options for the continuation of concessions services at the marina, including combining Buzzard Point operations with the nearby James Creek Marina. See, e.g. , AR 0244–47; AR 0338. But Park Service employees expressed concerns about the long-term financial feasibility of the project and the costs of deferred maintenance at the site. See, e.g. , AR 0125–28; AR 0244–47; AR 0338. In July 2013, for example, an inspection team observed that “[t]he [marina] grounds appeared to be well maintained,” but “[t]he floating docks on the other hand have some issues,” including soft spots, rotted pilings, inconsistent use of materials, and other safety hazards. AR 0099. In February 2014, the Park Service engaged third-party contractors to conduct a “comprehensive condition assessment” at the marina. AR 0161–65. The assessment found that the marina's dock structures were “in fair to poor condition,” and that the marina infrastructure was in need of repair and maintenance. AR 0163–65.

While the Park Service considered releasing a prospectus combining the Buzzard Point operations with another marina operation, see AR 0338; AR 0343, the agency decided in August 2015 not to solicit proposals for a new concessions contract for the facility. See AR 0381–84 (Park Service letter to Buzzard Point Boatyard Corporation explaining that the agency has “decided not to continue marina concession operations at Buzzard Point Marina after the expiration of concession contract TC-NACE-003-15 on December 31, 2015” because “the condition of the marina facility warrants extensive improvements, but the cost is too great to make it a profitable business”).

On August 31, 2015, the Park Service and Buzzard Point Boatyard Corporation sent a joint letter to marina slip holders, informing them that “effective December 31, 2015, slip rental and marina concession operations at the Buzzard Point Marina will be discontinued and the marina will be closed.” AR 0385. The letter explained that “[p]ast concession contracts did not allow for any capital investment or improvements to be made at the marina,” and that “the level of investment now needed makes this marina concession not financially feasible.” AR 0385. For those reasons, the letter advised that “a new concession contract prospectus would not be advertised for the Buzzard Point Marina site.” AR 0385. The letter stated that marina patrons had until December 31, 2015 “to arrange to relocate their boats, trailers, and personal property,” and it provided recipients with “a list of several area marinas and their current slip availability” to that end. AR 0385; see also AR 0389.

On September 3, 2015, the Park Service issued a “Record of Determination for a Temporary Closure of Buzzard Point Marina Due to the Concession Being Discontinued and the Need to Conduct Facility Stabilization, Maintenance, and Safety Related Projects,” pursuant to 36 C.F.R. § 1.5(a)

. AR 0397 (“Record of Determination”). In that document, the Park Service reported that “on December 31, 2015, marina concession operations by Buzzard Point Boatyard Corporation will be discontinued and the marina closed.” AR 0397. It explained that the marina would be temporarily closed as of January 1, 2016 “to ensure public health and safety while the area undergoes facility stabilization, maintenance, and safety related projects and activities,” and that the removal of marina-related infrastructure would begin after the marina was closed. AR 0397. The agency concluded that less restrictive measures than a closure would not suffice, and it found that “[t]he closure is not of a nature, magnitude and duration that will result in a ‘significant alteration in the public use pattern’ ” because the closure was of limited duration, other nearby parks would remain open, and “other adjacent marinas are open to the public and available to boaters.” AR 0397; see also Ex. 1 to Defs.' Notice to Ct. [Dkt. # 48-1] (map depicting the contiguous locations of Buzzard Point Marina and James Creek Marina); AR 0091 (“[T]here are six marinas in the immediate vicinity of Buzzard Point Marina, and another ... approximately 5 miles downriver.”). Because the Park Service further determined that the temporary closure would not impair park resources and values and was not of a highly controversial nature, it concluded that publication as a rulemaking in the Federal Register was not necessary. AR 0397.

In November 2015, as part of its NEPA compliance, the Park Service completed a “Categorical Exclusion Form” for a project entitled “Temporary Closure of Buzzard Point Marina,” which explained that a temporary...