Boston Redevelopment Authority v. National Park Service

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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