Boston Redevelopment Authority v. National Park Service ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-2270
BOSTON REDEVELOPMENT AUTHORITY,
Plaintiff, Appellant,
v.
NATIONAL PARK SERVICE and SALLY JEWELL,
as SECRETARY OF THE UNITED STATES DEPARTMENT OF THE INTERIOR,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Kayatta, Circuit Judges.
Denise A. Chicoine, with whom Edward S. Englander, Shannon F.
Slaughter, and Englander, Leggett & Chicoine P.C. 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.
September 23, 2016
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,
Since both defendants share a common interest, we refer to
1
NPS as if it were the sole party in interest on the defendants'
side of the case.
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§ 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-
2 At the time, the Heritage Conservation and Recreation
Service managed the LWCF grant program. NPS later absorbed that
agency and, for simplicity's sake, we refer throughout to NPS.
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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
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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
3The Commonwealth's Executive Office of Energy and
Environmental Affairs is the state agency responsible for
administering LWCF grants in Massachusetts and served as the state
intermediary in this instance. For ease in exposition, we refer
throughout to the Commonwealth.
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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.
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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.
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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
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deferential standard, our review of the district court's decision
is de novo. See United States v. Coal. for Buzzards Bay, 644 F.3d
26, 30 (1st Cir. 2011).
Notwithstanding this settled precedent, the BRA contends
that we should review NPS's determination de novo. It asserts,
belatedly, that NPS's decision was not an agency action subject to
APA review but, instead, an ultra vires "attempt to encumber land."
It also implies that the traditional APA standard of review does
not apply to claims brought under either the LWCF Act or the
Declaratory Judgment Act.
The short answer to these plaints is that they are
waived. The BRA unequivocally took the position before the
district court that the appropriate test was whether NPS's
determination of the boundaries of the Section 6(f) Area was
arbitrary and capricious.4 Having urged one standard of review in
the district court, it cannot now repudiate its earlier position
and seek sanctuary in a different standard. See, e.g., Martinez-
Lopez v. Holder, 704 F.3d 169, 173 (1st Cir. 2013); Ahern v.
Shinseki, 629 F.3d 49, 58-59 (1st Cir. 2010).
4 After the summary judgment hearing, the BRA asked to file
supplemental briefing on the applicable standard of review. The
district court appropriately denied this motion as untimely. See
McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 n.7 (1st Cir. 1991)
("Courts are entitled to expect represented parties to incorporate
all relevant arguments in the papers that directly address a
pending motion.").
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We add, moreover, that the BRA's assertion that the APA
standard does not apply to its LWCF Act claim is without force.
Where, as here, a statute administered by an agency provides a
cause of action but no standard of review, the APA typically fills
the void. See Ruskai v. Pistole, 775 F.3d 61, 67-68 (1st Cir.
2014).
The BRA's reliance on the Declaratory Judgment Act, 28
U.S.C. §§ 2201-2202, is equally misplaced. That statute simply
provides an additional remedy for "disputes that come within the
federal courts' jurisdiction on some other basis." Ernst & Young
v. Depositors Econ. Prot. Corp., 45 F.3d 530, 534 (1st Cir. 1995).
Here, the BRA sought a declaration that NPS violated the APA and
the LWCF Act. Given the way in which the BRA postured the case,
the district court's application of the APA standard to its claim
for declaratory relief cannot be faulted. See, e.g., Trafalgar
Capital Assocs., Inc. v. Cuomo, 159 F.3d 21, 26 (1st Cir. 1998)
(applying arbitrary and capricious standard of review to APA claims
brought under the Declaratory Judgment Act).
Moreover, the BRA's argument that NPS is simply
"attempt[ing] to encumber land" elevates wordplay to an art form.
Given the tenor of the BRA's complaint, the district court acted
within its authority in finding that NPS's determination of the
boundaries of the Section 6(f) Area constituted informal agency
action subject to APA review. After all, the record supports the
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conclusion that NPS engaged in informal decisionmaking and issued
a decision that had binding effect. No more was exigible to
constitute agency action subject to APA review. See Fla. Power &
Light Co. v. Lorion, 470 U.S. 729, 744 (1985); Bowler v. Hawke,
320 F.3d 59, 62-63 (1st Cir. 2003).
This brings us to the merits. We begin that portion of
our inquiry by identifying those records that form the basis for
our review.
In a traditional APA case, "the focal point for judicial
review should be the administrative record already in existence,
not some new record made initially in the reviewing court." Camp
v. Pitts, 411 U.S. 138, 142 (1973) (per curiam). Here, however,
the parties — by mutual consent — conducted additional discovery
to supplement the administrative record. Such additional
discovery may on rare occasions be proper in an APA case where, as
here, the complaining party has insinuated either that the agency
acted in bad faith or that the administrative record is incomplete.
See Valley Citizens for a Safe Env't v. Aldridge, 886 F.2d 458,
460 (1st Cir. 1989) (Breyer, J.). Given that both parties cite to
and rely on this supplemental information throughout their
appellate briefs, we see no reason to differentiate between the
discovery materials and the original administrative record.5
5Two further points should be noted. First, the district
court offered to remand the case to the agency for further review
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The parties' dispute hinges on whether NPS appropriately
determined that the 1980 map — and not the 1983 map — was the map
of record. The BRA advocates for the 1983 map and maintains that
the 1980 map was merely a concept sketch, not the official map
depicting the project's Section 6(f) boundaries. NPS sees the
matter differently: it dismisses the 1983 map as a Johnny-come-
lately and maintains that the 1980 map depicts the Section 6(f)
Area. As we explain below, the record provides ample support for
NPS's view.
Our starting point is the 1980 map itself. Even though
it was not formally entitled as a "Section 6(f) map," it was
formally labeled "Project Area Map," indicating that it was likely
provided in accordance with the NPS manual then in effect, which
required applicants to submit a "Project Boundary Map" as a
condition of grant eligibility. In the same vein, the 1980 map —
unlike the 1983 map — was submitted in the right time frame to be
the map of record. The 1983 map was not even in existence when
the BRA grant application was approved — indeed, it post-dates
that approval by more than two years — so it was eminently
in light of the supplemental discovery, but the parties — who agree
on little else — agreed that such a remand was unnecessary.
Second, even if we limited our consideration to the four corners
of the administrative record, the outcome would be unaffected: we
would still hold, on the slimmed-down record, that NPS's decision
was neither arbitrary nor capricious.
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reasonable for NPS to conclude that the 1983 map was not the map
of record.6
The 1980 map is likewise consistent with the rest of the
project application. For example, a metes and bounds description
contained in NPS's files corresponds generally with the 1980 map.
So, too, the project proposal refers to the "Project Area Map" and
uses the terms "Long Wharf" and "project site" interchangeably,
indicating that the applicant and the agency both envisioned the
project site as spanning most (if not all) of Long Wharf. The
project agreements describe the project in equally broad terms.
There is more. Dealings in the mid-1980s suggest that
the protagonists all understood that the 1980 map depicted the
official Section 6(f) Area. When the Massachusetts Bay Transit
Authority sought easements from the BRA to build the pavilion
structure and complete underground construction to facilitate
subway track access, the Commonwealth turned to NPS for
confirmation that granting the easements would not serve as a
conversion under Section 6(f). To facilitate NPS's decision, the
Commonwealth included a copy of the 1980 map in its correspondence.
The fact that the Commonwealth felt it necessary to secure NPS's
consent, combined with its inclusion of the 1980 map in its
6 Although the record reflects that the project agreement
between the Commonwealth and NPS was amended twice after NPS
approved the grant, neither amendment affected the project area
boundary in any way.
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correspondence, serves to fortify NPS's determination that the
1980 map was the map of record with respect to the Section 6(f)
boundaries.
Nor does the BRA gain ground by its assertion that the
Commonwealth, which it says maintained the official grant file,
had the 1983 map, but not the 1980 map, in its file. The project
agreement says only that the parties agree to perform the agreement
in accordance with the "maps . . . attached hereto or retained by
the State and hereby made a part hereof." The record offers no
reason to believe that the 1980 map, which the BRA admits was part
of its grant application, was not made a part of the project
agreement in this manner.
To say more on this point would be to paint the lily.
The 1980 map's depiction of the Section 6(f) Area corresponds with
the BRA's project proposal and with the project agreements executed
when NPS approved the BRA's grant request. We conclude, therefore,
that NPS's determination that the 1980 map was the map of record
vis-á-vis the Section 6(f) Area was entirely plausible. It follows
that the agency's decision was supported by substantial evidence
and was neither arbitrary nor capricious. We so hold.7
7 The case at hand presents a relatively narrow question, and
our holding is correspondingly narrow. We decide only that the
Pavilion area is within the Section 6(f) Area. It is not necessary
for us to decide any other questions, and we do not do so.
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Two other arguments advanced by the BRA warrant only
brief discussion. First, the BRA alleges that the LWCF grant that
it received was used only for planning purposes. Building on this
foundation, it asseverates that NPS misconstrued the LWCF Act
inasmuch as the Section 6(f) requirement attaches only to land
"acquired or developed" with LWCF grants and not to project
"planning" undertaken with those grants. Second, the BRA
asseverates that NPS transgressed its due process rights by failing
to afford it a sufficient opportunity to show that the 1983 map
was the map of record (thus violating procedural due process) and
by effecting an uncompensated taking of the BRA's property (thus
violating substantive due process).
Neither of these asseverations need detain us. The BRA
did not advance or develop either asseveration in the court below.
We have held, "with echolalic regularity," that arguments not
timely raised in the district court cannot be raised for the first
time on appeal. Iverson v. City of Boston, 452 F.3d 94, 102 (1st
Cir. 2006); see Teamsters, Chauffeurs, Warehousemen & Helpers
Union v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992)
("If any principle is settled in this circuit, it is that, absent
the most extraordinary circumstances, legal theories not raised
squarely in the lower court cannot be broached for the first time
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on appeal.").8 This raise-or-waive rule is "founded upon important
considerations of fairness, judicial economy, and practical
wisdom," Nat'l Ass'n of Soc. Workers v. Harwood, 69 F.3d 622, 627
(1st Cir. 1995), and there is no sound reason why we should not
adhere to it in the circumstances of this case.
If more were needed — and we do not think that it is —
these asseverations are plainly devoid of merit. To begin, the
distinction between acquisition and development, on the one hand,
and planning, on the other hand, is artificial. Section 6(f)(3)
is the "cornerstone of Federal compliance efforts to ensure that
the Federal investments in [LWCF] assistance are being maintained
in public outdoor recreation use." 36 C.F.R. § 59.3(a). The BRA's
interpretation of the LWCF Act would permit grant recipients to
chip away at this cornerstone. For example, grant recipients could
skirt Section 6(f) entirely by allocating their LWCF stipends
wholly for "planning" rather than for acquisition or development.
We refuse to read such a gaping loophole into the statute.
Furthermore, to the extent (if at all) that the LWCF Act is
ambiguous on this point, we find NPS's reading of the statute
8Here, moreover, the BRA has doubled down on its waiver by
failing to raise either of these arguments before the agency. See
Padgett v. Surface Transp. Bd., 804 F.3d 103, 109 (1st Cir. 2015)
(explaining that failure to raise an argument before the agency
waives any judicial review of that argument).
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reasonable and defer to that reading. See Chevron U.S.A., Inc. v.
Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-45 (1984).
The BRA's procedural due process argument is equally
flawed. The APA sets forth no strict procedural regime for
informal agency decisionmaking, and a party's procedural due
process rights are respected as long as the party is afforded
adequate notice and an opportunity to be heard "at a meaningful
time and in a meaningful manner." Mathews v. Eldridge, 424 U.S.
319, 333 (1976) (internal quotation marks omitted). Here, the BRA
received both adequate notice and a meaningful opportunity to be
heard. It was informed, well before the April 2014 meeting, that
NPS believed that the pavilion was within the Section 6(f)
boundary. At that meeting, it presented arguments and supporting
materials to buttress its position. The core requirements of
procedural due process were indisputably satisfied.
The BRA's substantive due process argument fares no
better. Far from being an unauthorized taking, NPS's determination
that the Pavilion area could not be developed for commercial
purposes was entirely consistent with both the terms of the LWCF
Act and the project agreements. To cinch the matter, the Section
6(f) restrictions were part of the bargain that the BRA struck
with NPS in order to secure the financial assistance that it sought
to rehabilitate Long Wharf. When a party applies for and receives
a federal grant, there is nothing either unfair or unconstitutional
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about holding the grant recipient to the terms of its bargain.
See Kuperman v. Wrenn, 645 F.3d 69, 79 (1st Cir. 2011) (citing
South Dakota v. Dole, 483 U.S. 203, 206 (1987)).
III. CONCLUSION
Although we need go no further, we think an additional
comment is in order. The BRA complains that, by upholding NPS's
decision, we will be allowing the agency to "restrict the entirety
of an invaluable piece of [the Boston] waterfront in perpetuity."
This complaint is groundless. As we already have explained, the
limitation of the Pavilion area to public outdoor recreational use
is exactly what the BRA offered when it applied for, and received,
over three-quarters of a million dollars in federal financial
assistance.9
For now, at least, the long war over Long Wharf is at an
end. Based on the reasoning elaborated above, the judgment of the
district court is
Affirmed.
In all events, the BRA remains free to develop the Pavilion
9
area as long as it does so within the parameters permitted by the
LWCF Act (that is, for public outdoor recreation uses). If the
BRA chooses to exceed those parameters, it may do so, as long as
it substitutes other property that NPS deems acceptable for public
outdoor recreational uses. See 54 U.S.C. § 200305(f)(3).
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