United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 14, 2007 Decided July 13, 2007
No. 06-5142
MIAMI BUILDING & CONSTRUCTION TRADES COUNCIL,
AFL/CIO AND
HOMESTEAD AIR BASE DEVELOPERS, INC.,
APPELLANTS
v.
SECRETARY OF DEFENSE ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 01cv00067)
Kevin S. O'Scannlain argued the cause for the appellants.
Ellen J. Durkee, Attorney, United States Department of
Justice, argued the cause for the appellees. John Most and Lisa
E. Jones, Attorneys, were on brief. Andrew C. Mergen,
Attorney, entered an appearance.
Before: GINSBURG, Chief Judge, and HENDERSON and
GRIFFITH, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: The
appellants, the Miami Building & Construction Trades Council
and the Homestead Air Base Developers, Inc., (collectively,
HABDI) contracted with Miami-Dade County (Miami-Dade or
County) to construct and operate a commercial airport on
surplus land forming part of what was then Homestead Air
Force Base (Homestead). HABDI challenges the decision of the
U.S. Air Force (Air Force) not to convey the land to Miami-
Dade for an airport, as previously planned, but instead to offer
a portion of the land to the County for a non-aviation
development. We conclude that HABDI lacks standing under
Article III of the United States Constitution. Even were we to
direct the Air Force to convey the total surplus acreage, we
cannot predict with any confidence that Miami-Dade—which
voluntarily terminated its participation in this lawsuit and,
pursuant to an agreement with the Air Force, has already
accepted a portion of the surplus property for mixed use
development—would make the policy choice to reverse course
and construct an airport, thus redressing HABDI’s alleged
injury, namely, the lost opportunity to build and operate a
commercial airport on land conveyed by the Air Force for this
purpose.
I.
The Homestead property is located in southern Miami-Dade
County, Florida near the towns of Homestead and Florida City
and between Biscayne National Park to the east and Everglades
National Park to the west. In March 1993, the United States
Secretary of the Department of Defense (Secretary)
recommended that Homestead be closed pursuant to the Defense
Base Closure and Realignment Act of 1990 (DBCRA), Pub. L.
No. 101-510 §§ 2901 et seq., 104 Stat. 1485, 1496 (1990). After
public hearings, the Defense Base Closure and Realignment
Commission prepared a report recommending realignment rather
than closure and the recommendation was approved by the
3
President and not disapproved by the Congress pursuant to
DBCRA. The Air Force then decided to dispose of 1,631.8
acres of Homestead it did not need for its planned realignment
of Homestead into the Homestead Air Reserve Station.
In July 1993, Miami-Dade submitted to the Air Force a draft
redevelopment plan proposing that the Air Force transfer
Homestead’s surplus property to Miami-Dade by public benefit
conveyance1 for redevelopment as a commercial airport. In
February 1994, the Air Force issued an environmental impact
statement (EIS) on Miami-Dade’s proposal. The EIS considered
four alternative uses of the surplus property—three of which
included a commercial airport (with varying additional
facilities); the fourth was “No-Action.” Record of Decision on
the Disposal of Homestead Air Force Base, Dade County
Florida (Oct. 1994) at 7-8 (JA 23-24). In October 1994, the Air
Force issued a Record of Decision (ROD) which determined that
certain parcels were to “be made available for disposal for use
as a public airport” and Miami-Dade “w[ould] be offered the
opportunity to apply for the property for public airport use.” Id.
at 13 (JA 29). The decision was contingent on Miami-Dade’s
submission of a qualifying application and approval thereof by
both the Air Force and the Federal Aviation Administration
(FAA). In addition, the ROD advised that “future economic,
political, and environmental conditions could redirect
development by the new owners toward other alternatives or
means of implementation.” Id. at 18 (JA 34).
1
A public benefit conveyance is the transfer of “surplus real
property . . . to State and local governments and certain non-profit
institutions or organizations at up to 100 percent public benefit
discount for public benefit purposes,” including “education, health,
park and recreation, the homeless, historic monuments, public airports,
highways, correctional facilities, ports, and wildlife conservation.” 41
C.F.R. § 102-75.350.
4
In September 1995 Miami-Dade entered an interim six-
month lease with the Air Force for the proposed airport property
while it prepared plans for airport development and operation.
The interim lease recited: “The Lessee acknowledges that this
Lease, and any extension of it, is not and does not constitute a
commitment by the Government as to the disposal of the Leased
Premises or of Homestead AFB, in whole or in part, to the
Lessee or any agency or instrumentality thereof, or to any
sublessee.” Lease § 6.3 (JA 43). The interim lease was
amended three times under the same terms and conditions, the
last extension ending on March 31, 1997.
In June 1996, Miami-Dade entered a “Lease and
Development Agreement” (Development Agreement) with
HABDI, in which Miami-Dade agreed to lease the airport
property to HABDI for a 45-year term and HABDI agreed to
construct and operate a commercial airport, with Miami-Dade to
receive a portion of the revenue. The Development Agreement
provided:
[T]he Lessee acknowledges that, because the County has no
long-term leasehold or ownership interest in [the lease
property] at this time, the terms of this Lease shall not be
effective until such time as the County acquires a leasehold
or fee simple interest in [the lease property] under the Long
Term Lease or the Conveyance, as applicable, and not before
....
Development Agreement at 1 (JA 108).2
2
Although conveyance of a fee simple interest was contemplated,
the ROD specified that “[a]ny property which the Air Force is unable
to convey by deed pending meeting environmental clean-up
requirements, will be transferred by long-term lease with a contract to
accept the property when all environmental remediations are in place.”
ROD at 13 (JA 29); see also Development Agreement at 2 (JA 109).
5
On December 31, 1996, Miami-Dade applied to the Air
Force for the conveyance or long-term lease of the airport
property. Meanwhile, the Air Force had received
correspondence from environmental groups seeking a
supplemental EIS because of significant expansion of HABDI’s
airport development plan—in particular, more extensive ground
facilities and an almost two-fold increase in the projected
commercial jet usage. Subsequently, the Air Force and the
FAA, in cooperation with the Department of the Interior
(Interior) and the Environmental Protection Agency (EPA),
decided to conduct a supplemental EIS (SEIS). The final SEIS,
issued in December 2000, considered four alternatives: (1) a
commercial airport as previously proposed; (2) a spaceport; (3)
a commercial, industrial, and/or residential “mixed use”
development; or (4) “no action.” SEIS §§ 2.2-2.5 (JA 275-356).
In the SEIS, the Air Force stated a preference for either the
proposed commercial airport or the mixed use alternatives,
explaining that it did “not consider the potential environmental
impacts of either of those alternatives to be disqualifying.” Id.
at 2.12-1 (JA 434). The FAA expressed “a stronger preference
for the commercial airport proposal because it would provide
needed additional airport capacity for south Florida” and it
believed the development “c[ould] include appropriate
environmental mitigation for the surrounding community,
Biscayne Bay, and the national parks.” Id. Both Interior and
EPA expressed a preference for the mixed use alternative. Id.
On January 15, 2001, the Air Force issued a Second
Supplemental Record of Decision (SROD), in which it
“conclude[d] that the surplus property should not be conveyed
for airport purposes.” SROD, Disposal of Portions of the
Former Homestead Air Force Base, Florida, at 5 (Jan. 15, 2001)
(JA 441). The Air Force decided instead to retain Homestead’s
runway and taxiways and to offer Miami-Dade a smaller parcel
(approximately 717 acres) “for mixed use development.” Id. If
Miami-Dade declined the offer, the Air Force planned to assign
6
the 717 acres to Interior which was to negotiate a transfer of the
land (in exchange for property interests beneficial to Interior) to
a party that would develop it for a mixed use or, failing that, the
land was to be disposed of by public sale. Id. The Air Force
explained it had “determined that the development of a
commercial airport at the former Homestead AFB in such close
proximity to Biscayne and Everglades National Parks, when
development alternatives with lesser impacts are available, poses
unacceptable risks to these national resources,” noting it was
“aware that other federal agencies believe that a commercial
airport would not be consistent with the purposes of the
Comprehensive Everglades Restoration Plan, authorized by P.L.
106-541.” Id. at 7 (JA 443).3
On January 12, 2001, HABDI filed this action challenging
the Air Force’s decision to prepare an SEIS. HABDI filed an
amended complaint on March 8, 2001 challenging the 2001
SROD itself, alleging the Air Force violated the DBCRA, the
Base Closure Community Assistance Act of 1993, Pub. L. No.
103-160, §§ 2901 et seq., 107 Stat. 1547, 1909 (1993), and the
Due Process and Equal Protection Clauses of the Fifth
Amendment to the United States Constitution. On March 16,
2001, Miami-Dade filed a similar suit which was voluntarily
dismissed on December 13, 2001 after the County filed an
application with the Air Force for conveyance of the Homestead
property for mixed use development.
3
Public Law 106-541 included a “Sense of Congress Concerning
Homestead Air Force Base,” which, inter alia, recognized that
“development at the Homestead site could potentially cause significant
air, water, and noise pollution and result in the degradation of adjacent
national parks and other protected Federal resources.” Water
Resources Development Act of 2000, Pub. L. No. 106-541, § 602, 114
Stat. 2572, 2693 (2000).
7
On July 13, 2004, the Air Force and Miami-Dade entered an
“Economic Development Conveyance”4 agreement under which
the Air Force agreed to convey 604 acres of the Homestead to
Miami-Dade for mixed use (but non-aviation) development. As
of February 16, 2006, the Air Force had delivered and Miami-
Dade had accepted deeds for 580 acres of the property; an
additional 24 acres were to be conveyed after environmental
remediation.
On March 16, 2006, the district court granted summary
judgment in favor of the Air Force for lack of jurisdiction on the
ground the plaintiffs lacked standing or, alternatively, on the
merits.5 Miami Bldg. & Constr. Trades Council v. Sec’y of Def.,
No. 01cv0067 (D.D.C. Mar. 16, 2006).
HABDI filed a notice of appeal on May 12, 2006.
II.
“Because the question of standing goes to our jurisdiction
over the case, we must consider it first.” AT&T Corp. v. FCC,
317 F.3d 227, 237 (D.C. Cir. 2003) (citing Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 94-95 (1998)). “The
‘irreducible constitutional minimum of standing contains three
4
An “economic development conveyance” is a “transfer [of] real
property and personal property . . . for purposes of job generation on
the installation,” 32 C.F.R. § 174.9(a), for which “the Secretary
concerned shall seek to obtain consideration at least equal to the fair
market value,” id. § 174.10(b), although a conveyance may be made
without consideration under certain circumstances, id. § 174.10(e).
5
On the merits, the district court concluded that the SEIS was
performed in conformance with Air Force regulations, the SROD was
not arbitrary or capricious and there was no record evidence to support
HABDI’s due process and equal protection claims. See Miami Bldg.
& Constr. Trades Council v. Sec’y of Def., No. 01cv0067, slip op. at
15-16 (D.D.C. Mar. 16, 2006).
8
elements’: (1) injury-in-fact, (2) causation, and (3)
redressability.” Rainbow/PUSH Coal. v. FCC, 396 F.3d 1235,
1240 (D.C. Cir. 2005) (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992)) (other internal quotation omitted).
Following our decision in US Ecology, Inc. v. United States
Department of the Interior, 231 F.3d 20 (D.C. Cir. 2000), we
conclude that the district court correctly held that HABDI lacks
Article III standing because it has not demonstrated
redressability.
In US Ecology, the State of California (California) had
sought to purchase from Interior a parcel of federal land in the
Mojave Desert (Ward Valley Site) for use as a low-level
radioactive waste facility and, in connection with the purchase,
had contracted with US Ecology to develop the site. Interior
initially issued a ROD approving the sale but subsequently
rescinded the ROD. California and US Ecology filed separate
suits in the district court challenging the rescission. After the
actions were consolidated, the district court granted summary
judgment in Interior’s favor. US Ecology appealed but the State
of California did not. While US Ecology’s appeal was pending,
Interior sent California a letter advising it that Interior was
terminating its purchase application.
On appeal we held that US Ecology lacked Article III
standing based on its “most obvious failing—its inability to
demonstrate that it is ‘ “likely,” as opposed to merely
“speculative,” that [its] injury will be “redressed by a favorable
decision.” ’ ” US Ecology, 231 F.3d at 24 (quoting Defenders of
Wildlife, 504 U.S. at 561 (quoting Simon v. E. Ky. Welfare
Rights Org., 426 U.S. 26, 38, 43 (1976))) (alteration in original).
The court explained that the policy decision whether to go ahead
with the purchase and development of the Ward Valley Site
belonged entirely to the State of California and “[c]ourts have
been loath to find standing when redress depends largely on
policy decisions yet to be made by government officials”
9
because “the question of ‘[w]hether [appellant's] claims of
economic injury would be redressed by a favorable decision [in
such a] case depends on the unfettered choices made by
independent actors not before the courts and whose exercise of
broad and legitimate discretion the courts cannot presume either
to control or to predict.’ ” Id. at 24 (quoting ASARCO Inc. v.
Kadish, 490 U.S. 605, 615 (1989)) (alteration in original).
Thus, “[w]hen redress depends on the cooperation of a third
party, ‘it becomes the burden of the [appellant] to adduce facts
showing that those choices have been or will be made in such
manner as to produce causation and permit redressability of
injury.’ ” Id. at 24-25 (quoting Defenders of Wildlife, 504 U.S.
at 562) (second alteration in original). The court concluded US
Ecology had not met its burden because “even were the
Department of the Interior to issue a [land patent transferring
title of the Ward Valley Site to California] as US Ecology
requests, only the State of California is capable of accepting title
and taking ownership of the land.” Id. at 25. We believe
HABDI has failed to meet its burden for substantially the same
reason.
Here, only Miami-Dade “is capable of accepting title and
taking ownership of the land,” id., and whether to reverse course
and build an airport rather than the planned mixed use
development is a policy decision only Miami-Dade can make.
What its decision would be if offered—as originally—the full
1,631.8 acres to construct an airport is beyond the court’s
control or ken. It might, as HABDI insists, choose an airport or
it might maintain its present course. Thus, like US Ecology,
HABDI’s “disappointment at having invested—and perhaps
lost—time and money” in the proposed project, “without more,
is not enough” to establish standing. US Ecology, 231 F.3d at
25. HABDI must also demonstrate redressability and, like US
Ecology, has failed to do so.
10
HABDI attempts to distinguish this case from US Ecology
but to no good effect. First, HABDI asserts that, unlike US
Ecology, it possesses a “contingent legal right” to lease the
original 1,631.8 acres to operate a commercial airport and the
loss of this right constitutes a sufficient injury. We disagree.
US Ecology, “seek[ing] refuge in a few lines of dicta found . . .
in University Medical Center of Southern Nevada v. Shalala,
173 F.3d 438 (D.C. Cir. 1999),” claimed standing based on a
legal right to develop the Ward Valley Site contingent on
California’s right to purchase the site from Interior. Id.
“[A]ssuming” that a contingent legal right “poses a circumstance
under which the redressability problem might be avoided,” we
found no such circumstance in that case because US Ecology
had not demonstrated a “legally enforceable right” to compel
California to “accept the Ward Valley Site if offered” or even
“to develop the facility were California ultimately to pursue the
Ward Valley Site.” Id. Like US Ecology, HABDI too lacks the
legal right to compel the potential land transferee—in this case,
Miami-Dade—to accept the land transfer. The Development
Agreement expressly provides that the terms of the lease—and
consequently any rights HABDI may have thereunder— “shall
not be effective until such time as the County acquires a
leasehold or fee simple interest in [the lease property] under the
Long Term Lease or the Conveyance, as applicable, and not
before.” Development Agreement at 1 (JA 108). And that time
will not come unless and until Miami-Dade decides to accept the
original acreage and proceed with airport development—events
that may never occur. Thus, as in US Ecology, see 231 F.3d at
25, even assuming the contingent legal right theory could
support redressability in the proper case—an issue we do not
decide—this is not that case. See id. (rejecting US Ecology’s
“contingent legal right” claim).
HABDI also attempts to distinguish US Ecology factually,
noting that in that case “the court found that the State chose not
to appeal an adverse lower court decision amid concerns about
11
‘the lack of funds to purchase the site,’ ‘the apparent lack of
authority of [the State agency] to acquire land,’ and ‘substantial
steps . . . required to proceed with the requested sale.’ ”
Appellants’ Br. at 14 (quoting US Ecology, 231 F.3d at 24)
(alteration by appellants). This characterization, however, is not
entirely accurate. The three quoted circumstances were not
California’s reasons for declining to appeal but instead Interior’s
reasons for terminating California’s application after California
had declined to appeal. See US Ecology, 231 F.3d at 23-24. In
any event, there is no reason to believe that Miami-Dade is
interested in proceeding with airport development rather than the
planned mixed use development. Based on the record evidence,
we cannot agree with HABDI that Miami-Dade’s “preferred
use” remains use as a commercial airport. See Appellants’ Br.
at 11.
Because the appellants have failed to demonstrate that their
alleged injury is redressable in this proceeding, we conclude that
they lack standing under Article III of the United States
Constitution. Accordingly, the district court’s summary
judgment is affirmed.
So ordered.