Boston Redevelopment Authority v. National Park Service (BRA II)

US Court of Appeals, First Circuit, No. 15-2270, September 23, 2016: Upholds NPS disapproval of Long Wharf restaurant use.

On appeal the court upheld the District Court decision in Boston Redevelopment Authority v. National Park Service (BRA I) 125 F.Supp.3d 325 (2015) in favor of the National Park Service (NPS), forbidding the Boston Redevelopment Authority (BRA) from using as a private restaurant certain land on the Boston Harbor waterfront designated for public recreational use under an NPS grant.

As reported here in connection with BRA I, the NPS is involved in the BRA’s attempt to place the restaurant on what is now a public open pavilion at the end of Long Wharf because the Commonwealth of Massachusetts received federal funds put toward the BRA’s redevelopment of the pier in the 1980s. The funds were a grant from the federal Land and Water Conservation Fund (LWCF) under the Land and Water Conservation Fund Act (LWCF Act), 54 U.S.C. §§ 200301-200310, for public outdoor recreation use. To get the LWCF grant the Commonwealth had to designate a project area (the “Section 6(f) Area”) which could not be converted to “other than public outdoor recreation use” without prior NPS approval. (In this sense, the acceptance of the LWCF grant acted like the grant by the BRA of a conservation easement on the Section 6(f) Area.)

When the BRA sought NPS approval for the restaurant use in 2009, the NPS approved because the pavilion area was outside the Section 6(f) Area as shown on the only plan of the Section 6(f) Area of which NPS was aware when making that decision. That was a 1983 map furnished to it by the Commonwealth, though the date of the map was after the date of the LWCF grant.  In 2014, however, NPS discovered a 1980 map clearly showing the Section 6(f) boundary area established at the time of the LWCF grant to include the pavilion. NPS reversed itself and denied approval for the restaurant.

The BRA went to federal court to try to get a ruling that NPS failed to comply with the federal Administrative Procedure Act (APA) on the grounds that NPS, in relying on the 1980 map and in reversing itself, was arbitrary and capricious. The lower court denied that request.

On appeal the court concluded that the record in the lower court supports the NPS’s view that the 1980 was the definitive map, and that NPS’s actions were reasonable and their determinations plausible, supported by substantial evidence and neither arbitrary nor capricious.

The court also dispatched with the BRA’s attempt to change its basis for attacking the NPS decision. The BRA tried to argue on appeal that NPS’s decision was not subject to APA review but, instead, an ultra vires “attempt to encumber land,” and also, according to the court, implied that the traditional APA standard of review does not apply to claims brought under either the LWCF Act or the Declaratory Judgment Act. The court said that these arguments were waived by the BRA because it did not make them in the lower court. “Having urged one standard of review in the district court,” the court wrote, “it [BRA] cannot now repudiate its earlier position and seek sanctuary in a different standard.” The court also noted, however, that in any event, these arguments by the BRA got the law wrong.

The BRA further argued that the LWCF grant was used only for planning purposes, while the Section 6(f) requirement are applicable only to land “acquired or developed” with LWCF grants and not to project “planning” undertaken with those grants. The court rejected the distinction between acquisition and development, on the one hand, and planning, on the other hand, as “artificial.”  Quoting from federal regulations, 36 C.F.R. § 59.3(a), that Section 6(f) is the “cornerstone of Federal compliance efforts to ensure that the Federal investments in [LWCF] assistance are being maintained in public outdoor recreation use,” the court said the BRA’s argument was an attempt 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.” This argument was also rejected on procedural grounds.

Decision available at http://media.ca1.uscourts.gov/pdf.opinions/15-2270P-01A.pdf.

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