Boston Redevelopment Authority v. National Park Service

US District Court, D. Massachusetts, Civil Action No. 14-12990-PBS, August 26, 2015: Long Wharf Pavilion in Land and Water Conservation Fund restricted area can’t become restaurant.

The dispute underlying this case is whether the Plaintiff Boston Redevelopment Authority (BRA) may convert Long Wharf Pavilion, an open-air structure built in 1988 on Long Wharf in Boston Harbor, into a restaurant. The particular issue in this summary judgment case is whether the National Park Service (NPS) may rely on a certain map (the “1980 map”) in denying the BRA permission under the Land and Water Conservation Fund (LWCF) Act to convert the Pavilion into a restaurant.

The BRA was awarded a federal LWCF grant in 1981 to plan, purchase, and develop public outdoor recreation spaces on Long Wharf. Under the LWCF Act, 54 U.S.C. § 200305(f)(3), no property acquired or developed with LWCF assistance and shown on a “project boundary map” (a “6(f) map”) as within a so-called “6(f) restricted area” may, without the approval of the Secretary of the Interior, be converted to other than public outdoor recreation use.

When asked to approve the Long Wharf conversion, NPS initially did not take notice of the 1980 Map but did consider a 1983 6(f) map and approved the project. Later, with the existence of the 1980 Map in the NPS records brought to its attention, the NPS reversed itself and denied approval of the project.

The BRA appealed the denial and sought summary judgment that NPS could not rely on the 1980 Map. The basis of the BRA motion was (1) that the NPS action violated the federal Administrative Procedure Act (APA) because relying on the 1980 Map was arbitrary and  capricious; and (2) NPS should be judicially estopped from relying on the 1980 map after initially taking the position that the Long Wharf Pavilion did not fall into the 6(f) restricted area. NPS also moved for summary judgment to uphold its decision.

The court’s analysis was necessarily heavily fact specific but within the context that, “Because the APA standard affords great deference to agency decisionmaking and because the Secretary’s action is presumed valid, judicial review, even at the summary judgment stage, is narrow.” The court concluded that the NPS could reasonably decide that the 1980 Map was the 6(f) map which established the 6(f) restricted area, and that the Long wharf Pavilion area was within that 6(f) restricted area. Despite the BRA’s assertion to the contrary, the court found there was also no evidence in the record that the 6(f) boundary was ever formally amended.

The court also rejected the BRA argument that NPS acted arbitrary and capriciously when it changed its mind, allowing the restaurant project to proceed before rejecting it. The court held it “is not the law” that NPS cannot reconsider its decisions even after discovering a mistake, writing, “It is well-established that ‘an agency, may, on its own initiative, reconsider its interim or even its final decisions, regardless of whether the applicable statute and agency regulations expressly provide for such review’ ” [citation omitted].

Lastly, the court rejected the BRA’s assertion that the doctrine of judicial estoppel should prevent NPS from saying the Long Wharf Pavilion is in the 6(f) restricted area after previously representing to the Massachusetts Department of Environmental Protection (DEP) that it was not part of a 6(f) restricted area, which representation became part of the record before the Massachusetts Office of Appeals and Dispute Resolution and the Massachusetts Superior Court in the Mahajan v. DEP litigation (which was ultimately decided on appeal in Mahajan v. DEP, 984 N.E.2d 821 (Mass. 2013)).

Noting that “judicial estoppel is an equitable doctrine invoked by a court at its discretion” and that ” the Government may not be estopped on the same terms as any other litigant,” the court weighed the equities and found in favor of NPS. The court found NPS changed its position in good faith after realizing a mistake, and did not take “one calculated position early on in the litigation and then adroitly flip-flops to another when expedient.”  The court also said that, “judicial estoppel would not merely affect BRA and NPS. Rather, NPS is responsible for enforcing LWCF restrictions that preserve outdoor recreational spaces for the benefit of the public at large.”

The court accordingly denied the BRA’s Motion for Summary Judgment and allowed the NPS Motion.

The decision is available at The 1980 Map may be seen in an article by Matt Conti dated February 12, 2014, in the online newsletter North End

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