High Point, LLLP v. The United States Park Service et al
Filing
68
ORDER denying 28 Motion for Summary Judgment; granting 36 Motion for Summary Judgment; and denying 67 Motion for Status Conference Hearing. The Clerk of Court is directed to close the case and enter the appropriate judgment. Signed by Chief Judge Lisa G. Wood on 2/27/2015. (csr)
n the mutteb otatomarta Court
for the boutbtrn Motritt of 4*eoria
Ikuntuitk fltbitou
High Point, LLLP,
Plaintiff,
VS.
*
*
*
*
*
*
*
THE UNITED STATES NATIONAL
*
PARK SERVICE; JONATHAN B.
JARVIS, in his official capacity as Director *
of the United States National Park Service; *
*
STANLEY AUSTIN, in his official
*
capacity as Regional Director, Southeast
*
Regional Office, United States National
Park Service; and GARY INGRAM, in his *
*
official capacity as Superintendent,
*
Cumberland Island National Seashore,
*
*
Defendants.
CV 212-095
ORDER
Presently before the Court are cross-motions for summary
judgment and a motion for a status conference. See Dkt. Nos.
28, 36, 67. For the reasons stated below, High Point's Motions
for Summary Judgment (Dkt. No. 28) and for a Status Conference
(Dkt. No. 67) are DENIED.
The Park Service's Cross Motion for
Summary Judgment (Dkt. No. 36) is GRANTED.
BACKGROUND
Most of the facts in this action are not in dispute.
Cumberland Island, located approximately three miles from the
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mainland coastline of Georgia, is Georgia's southernmost and
largest barrier island. Dkt. No. 12, ¶ 13. Currently, the
Federal Government owns most of Cumberland Island in fee simple.
Dkt. No. 12, ¶ 15. Cumberland Island remains largely
undeveloped, although some areas are improved with houses,
docks, and structures that are used by retained rights holders,
Defendant National Park Service ("Park Service"), or visitors of
the island. Dkt. No. 28, ¶ 4. Access to Cumberland Island
remains limited; no roads connect the island to the mainland.
Thus, all visitors must travel by boat or use an airstrip. The
primary means of transportation to the island is by boat. Dkt.
No. 36, ¶ 4. Historically, noted families such as the Carnegies
and the Candlers owned large portions of Cumberland Island and
used the island as a vacation spot.
Beginning in 1930, Charles Howard Candler, Sr. purchased
several parcels of land on the northern end of Cumberland
Island. Dkt. No. 2, ¶ 17. This area of Cumberland Island came
to be known as High Point. High Point Compound, which consists
of thirty-eight acres on the northern end of the island, has
several residences and other structures that generations of the
Candler Family have used and enjoyed. Dkt. No. 2, ¶91 17, 57.
The Candler Family has historically traveled to High Point
Compound through the use of Brick-Kiln Dock, a dock located on
Hawkins Creek. The Carnegie Family formerly owned the land
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2
where Brick-Kiln Dock was located but allowed the Candler Family
to build and use Brick-Kiln Dock for deep water access to High
Point Compound. Dkt. No. 28, ¶ 18.
Even from the start, travel to High Point Compound has been
a time-consuming and uncomfortable endeavor. To reach BrickKiln Dock from the mainland, members of the Candler Family
traveled by road to Jekyll Harbor Marina on Jekyll Island,
another barrier island. From there, they took a passenger
vessel down Jekyll Creek, across the Jekyll and St. Andrew
Sounds, down the Cumberland and Br±ckhill Rivers, and up Hawkins
Creek. The distance from Jekyll Harbor Marina to Brick-Kiln
Dock is approximately 11.8 miles. The boat ride from Jekyll
Harbor Marina to Brick-Kiln Dock typically takes around fortyfive minutes, depending on wave conditions in St. Andrew Sound.
Dkt. No. 2, ¶ 24. High Point Compound is located roughly 3.5
miles from Brick-Kiln Dock. This distance must be traversed by
either car or foot. Travel on foot takes approximately fortyfive minutes, whereas travel by car takes fifteen to twenty
minutes. Dkt. No. 2, ¶ 25. The roads from Brick-Kiln Dock to
High Point Compound are narrow, unpaved, dirt roads that have
many ruts and holes. Because of their condition, travel along
these roads by car is described as slow, bumpy, and
uncomfortable. Dkt. No. 2, ¶ 27.
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3
In the early 1970s, the Federal Government began acquiring
land on Cumberland Island through the National Park Foundation,
a non-profit charitable corporation, with the goal of
establishing a national seashore. See, e.g., AR 0028-0036. A
national seashore is a federal park located in a coastal area.
Dkt. No. 28, ¶ 19. In 1972, Congress enacted legislation
designating Cumberland Island a National Seashore. 16 U.S.C. §
459i-459i-9 (the "Seashore Act") . In 1973, the National Park
Foundation conveyed the tract of land where the Brick-Kiln Dock
was located to the Federal Government. Dkt. No. 36, ¶ 11; AR
0069-0073. In 1982, President Reagan signed legislation into
law which, under the Wilderness Act, designated 8,840 acres of
Cumberland Island as wilderness and 11,718 acres as potential
wilderness. Pub. L. No. 97-250, 96 Stat. 709 (1982) ("Wilderness
Designation")
The Federal Government and Plaintiff High Point, LLLP's
predecessor in interest began negotiations for the Federal
Government to acquire lands owned by the Candler Family.' In
1982, High Point sold its property on Cumberland Island to the
Federal Government but retained a life estate in High Point
Compound. The conveyance specifically reserved certain rights.
1
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1
High Point, LLLP is a Georgia partnership comprised of members of the
Candler Family and is organized to hold title and manage the Candler
Family's interest on Cumberland Island. Dkt. No. 36 at 1. For
purposes of this Order, High Point, LLLP and its predecessor in
interest, High Point, Inc., are collectively referred to as "High
Point."
4
AR 0195-0206. The Warranty Deeds stated that the conveyance
was:
SUBJECT to the reservation of use by High Point,
Inc., and its shareholders, of the area presently
known as Brick-Kiln Dock located on Hawkins Creek
in Tract N-5 Cumberland Island, Georgia, free
from unreasonable interference by GRANTEE, its
successors and assigns, with such use, nor shall
GRANTEE, its successors and assigns, be
responsible for maintenance, repair, or any
liability for its use[.]
AR 0201. The Warranty Deeds further provided, in a section
titled "Preservation," that:
[a]fter the expiration of such period of four (4)
years from the day of [the] conveyance, High
Point, Inc., and its shareholders, shall not add
to nor materially alter the character of existing
improvements or structures contained within .
its
and
Point,
Inc.,
where
High
areas
shareholders, reserve easements and rights of use
and occupancy nor perform any new construction or
change the topography of the land without first
having obtained the permission in writing of the
Any
GRANTEE, its successors and assigns.
building or structure damaged or destroyed by
fire or other casualty or deteriorated by the
elements, or wear and tear, may be maintained,
repaired, renovated, remodeled, or reconstructed
so long as the basic character of the building or
structure is not materially altered, from that
existing as of the date of expiration of such
four (4) year period as specified above.
AR 0204-0205. The Warranty Deeds also contained the following
language:
With respect to . . . areas in
Maintenance.
which High Point, Inc., and its shareholders,
reserve easements and rights of use and
occupancy, High Point, Inc., and its
shareholders, shall have the right to make normal
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5
maintenance and upkeep of the property, to make
modern modifications to existing structures and
outbuildings, to make repairs and reconstruction
to comply with safety or other sanitation codes,
to replace roofing or siding, to shore up
structures threatened by subsidence of soil and
to repair or replace utility lines.
AR 0205.
Over time, due to natural causes, the flow of water in
Hawkins Creek has changed, causing a buildup of silt in certain
areas and making the area of Hawkins Creek where Brick-Kiln Dock
is located too shallow for navigation by passenger vessels,
except for during a period of approximately four hours at high
tide. According to High Point, Hawkins Creek will eventually be
unusable as a point of deep water access to Cumberland Island at
all times, as the "silting-in" continues to increase. Dkt. No.
28, ¶T 58-60.
High Point, in response to this problem, requested
permission from the Park Service to relocate the dock. In a
series of correspondence between the Park Service and High Point
from 2008 to 2012, the Park Service has consistently denied High
Point's requests to either relocate the entire dock or just the
non-upland2 portion of the dock. Dkt. No. 28,
IN
61-91. The
parties agree that the Park Service has issued a final agency
2
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1
For the purposes of this Order, "non-upland" refers to marshlands,
tidelands, and riverbeds.
6
action under the Administrative Procedure Act denying High
Point's requests. Dkt. No. 28, ¶ 92.
High Point requested permission from the Park Service to
pursue one of the following three options: (1) move the BrickKiln Dock approximately 300 feet to the north on Hawkins Creek
("Option One"), (2) move the Brick-Kiln Dock approximately 900
feet to the south on Brickhill River ("Option Two"), or (3)
extend the Brick-Kiln Dock to the southwest, across Hawkins
Creek and into the Brickhill River ("Option Three"). Dkt. No.
2, ¶ 81. The first two options would involve building a new
dock in a different location than the existing Brick-Kiln Dock.
See AR 0358-0359 (describing options) . The third option would
entail extending the dock from its current location to the
southwest and into the Brickhill River by building an arched
walkway of approximately 1000 feet to connect the non-upland
portion of the dock to the existing upland portion of the dock.
AR 0359. High Point maintains that each of the proposed options
could be completed by moving or extending only the portion of
the existing dock that is in the marshlands and keeping upland
structures within their existing footprint. Dkt. No. 2, ¶ 95.
The Park Service reasoned that High Point's reserved rights
under the Warranty Deeds did not include its present requests,
and that, absent a reserved right, the Wilderness Act prohibited
High Point's proposed actions. See Dkt. No. 28, ¶ 88. In its
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requests, High Point argued that the non-upland areas were not
owned by the Federal Government, but rather the State of Georgia
retained ownership of them. See, e.g., AR 0754-0755; AR 09030904. Thus, High Point contended that the Park Service could
not object to High Point's proposed options involving
construction solely over the non-upland areas, because that land
is not owned by the Federal Government. Though contending that
the United States has color of title over the marshlands and
tidelands at issue, in its final correspondence, the Park
Service stated, "the resolution of the marshlands ownership
question raised in [High Point's] September 27, 2012 letter is
not dispositive of the overall issue of whether the dock may be
relocated." AR 0945-0946. The Park Service stated, "even
assuming that somehow the marshlands were conclusively found to
belong to the State of Georgia, and title formally returned to
the state, [the Park Service] would still have regulatory
authority over actions, such as dock construction, that occur in
those marshlands." AR 0946.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a), summary
judgment is appropriate "if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." The Court must view
the evidence and draw all inferences in the light most favorable
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to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144,
157-59 (1970) . The party seeking summary judgment must first
identify grounds that show the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24
(1986). To discharge this burden, the movant must show the
Court that there is an absence of evidence to support the
nonmoving party's case. Id. at 325. The burden then shifts to
the nonmovant to go beyond the pleadings and present affirmative
evidence to show that a genuine issue of fact does exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
When, as here, the parties have filed cross-motions for
summary judgment, the applicable Rule 56 standard is not
affected. See Gerling Global Reinsurance Corp. of Am. v.
Gallagher, 267 F.3d 1228, 1233-34 (11th Cir. 2001). "[T]he facts
are viewed in the light most favorable to the non-moving party
on each motion." Chavez v. Mercantil Commercebank, N.A., 701
F.3d 896, 899 (11th Cir. 2012). Additionally,
"[t]he summary
judgment procedure is particularly appropriate in cases in which
the court is asked to review . . . a decision of a federal
administrative agency." Fla. Fruit & Vegetable Ass'nv. Brock,
771 F.2d 1455, 1459 (11th Cir. 1985) (quotations omitted).
Under the Administrative Procedure Act ("APA"), a court may
set aside agency action that is "arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law[.]" 5
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9
I
U.S.C. § 706(2) (A).
'[T]his standard is exceedingly
deferential[.]" Fund for Animals, Inc. v. Rice, 85 F.3d 535,
541 (11th Cir. 1996)
The scope of review under the arbitrary and
capricious standard is narrow and a court is not
to substitute its judgment for that of the
agency. Nevertheless, the agency must examine
the relevant data and articulate a satisfactory
explanation for its action including a rational
connection between the facts found and the choice
made. In reviewing that explanation, [a court]
must consider whether the decision was based on a
consideration of the relevant factors and whether
there has been a clear error of judgment.
Normally, an agency rule would be arbitrary and
capricious if the agency has relied on factors
which Congress has not intended it to consider,
entirely failed to consider an important aspect
of the problem, offered an explanation for its
decision that runs counter to the evidence before
the agency, or is so implausible that it could
not be ascribed to a difference in view or the
product of agency expertise.
Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983) (internal citations and
quotations omitted).
DISCUSSION
I. Amount of Deference to the Park Service's Determinations
The parties disagree about the amount of deference that
should be accorded to the Park Service's interpretation of the
Warranty Deeds. Determining what rights are retained by High
Point in the Warranty Deeds is a question of law regarding
contract interpretation and is not a question that the Park
10
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Service would have a particular expertise in deciding. Muratore
v. U.S. Office of Pers. Mgmt., 222 F.3d 918, 923 (11th Cir.
2000) (affording deference to Office of Personnel Management's
contract interpretation because of the agency's "relevant
expertise in [the] area" and "because it negotiates the
contracts at issue and . . . routinely interprets plans");
Defenders of Wildlife v. Salazar, 877 F. Supp. 2d 1271, 1291
(M.D. Fla. 2012) (declining to afford deference to Park
Service's interpretation of a settlement agreement where the
Park Service "[had] neither identified sufficient facts which
give it special expertise . . . nor shown that its
interpretation . . . [was] an administrative action with the
effect of law."). Accordingly, the Court does not believe the
Park Service's interpretation of the Warranty Deeds merits a
heightened form of deference. United States v. Mead Corp., 533
U.S. 218, 234 (2001) ("[A]n agency's interpretation may merit
some deference whatever its form . . . .") (citing Skidmore v.
Swift & Co., 323 U.S. 134, 139-40 (1944)). Regardless of the
level of deference, however, the Court concludes that the Park
Service correctly interpreted the Warranty Deeds.
II. Whether High Point Has a Reserved Right Under the Warranty
Deeds to Relocate the Dock.
The Wilderness Act is made subject to "existing private
rights." 16 U.S.C. § 1133(c). Thus, if High Point has an
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existing private right to relocate the dock under the Warranty
Deeds, then the Wilderness Act would not impact High Point's
exercise of that right.
"When the United States enters into contract relations, its
rights and duties therein are governed generally by the law
applicable to contracts between private individuals." Franconia
Assocs. v. United States, 536 U.S. 129, 141 (2002) (quoting
Mobil Oil Exploration & Producinq Se., Inc. v. United States,
530 U.S. 604, 607 (2000)). Both parties agree that Georgia law
should guide the interpretation of the Warranty Deeds. See Dkt.
No. 36 at 24.
"In construing the language of an express easement," such
as the one at issue here, courts "apply the rules of contract
construction." Parris Props., LLC v. Nichols, 700 S.E.2d 848,
853 (Ga. Ct. App. 2010) (citing Mun. Elec. Auth. of Ga. v. GoldArrow Farms, Inc., 625 S.E.2d 57, 61 (Ga. Ct. App. 2005)). "The
cardinal rule of contract construction is to ascertain the
parties' intent, and where the contract terms are clear and
unambiguous, the court will look to that alone to find the true
intent of the parties." Id. (internal punctuation omitted) . A
court follows a three-step process in interpreting a contract.
Global Ship Sys., LLC v. Cont'l Cas. Co., 663 S.E.2d 826, 828
(Ga. Ct. App. 2008) . The first step is to determine if the
language of the contract is clear and unambiguous. Id. "When a
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contract contains no ambiguity, the court simply enforces the
contract according to its clear terms; the contract alone is
looked to for its meaning." Id. (citations and quotations
omitted) . If the contract is unclear, the court seeks "to
resolve the ambiguity by applying the rules of contract
construction." Id.
Under Georgia law, "[a]mbiguity exists when a contract is
uncertain of meaning, duplicitous, and indistinct, or when a
word or phrase may be fairly understood in more than one way."
Id. (citations and punctuation omitted). The words found in a
contract "generally bear their usual and common meaning[,]" and
those meanings may be obtained by reference to common
dictionaries. Id. at 828-29 (citations omitted).
The plain language of the Warranty Deeds quite clearly
indicates that High Point does not have the right to relocate
the dock. The Warranty Deeds provide, in a section titled
"Preservation," that:
[a]fter the expiration of such period of four (4)
years from the day of [the] conveyance, High
Point, Inc., and its shareholders, shall not add
to nor materially alter the character of existing
improvements or structures contained within .
areas
where
High
Point,
Inc.,
and
its
shareholders, reserve easements and rights of use
and occupancy nor perform any new construction or
change the topography of the land without first
having obtained the permission in writing of the
GRANTEE, its successors and assigns.
Any
building or structure damaged or destroyed by
fire or other casualty or deteriorated by the
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13
I
elements, or wear and tear, may be maintained,
repaired, renovated, remodeled or reconstructed
so long as the basic character of the building or
structure is not materially altered, from that
existing as of the date of expiration of such
four (4) year period as specified above.
AR 0204-0205 (emphasis added). The subsequent section of the
Warranty Deeds is also relevant to the issue at hand.
With respect to . . . areas in
Maintenance.
which High Point, Inc., and its shareholders,
reserve easements and rights of use and
occupancy, High Point, Inc., and its
shareholders, shall have the right to make normal
maintenance and upkeep of the property, to make
modern modifications to existing structures and
outbuildings, to make repairs and reconstruction
to comply with safety or other sanitation codes,
to replace roofing or siding, to shore up
structures threatened by subsidence of soil and
to repair or replace utility lines.
AR 0205.
High Point argues that the Warranty Deeds grant High Point
the right to relocate the dock without the Park Service's
approval based on the language providing that the dock "may be
maintained, repaired, renovated, remodeled, or reconstructed so
long as the basic character of the building or structure is not
materially altered[.]" That clause of the contract notably does
not include the word "relocate." High Point argues that
omission is inconsequential.
The common meanings of the words contained in the
Preservation Clause demonstrate to the Court that the
Preservation Clause does not grant High Point the right to
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relocate the dock without the Park Service's permission.
Merriam Webster defines "maintain" as "to keep in an existing
state (as of repair, efficiency, or validity): preserve from
failure or decline[.]"3 The definition of "repair" includes "to
restore by replacing a part or putting together what is torn or
broken" and "to restore to a sound or healthy state[.
],,4
"Renovate" is defined as "to restore to a former better state
(as by cleaning, repairing or rebuilding)
[•]5
"Remodel" means
"to alter the structure of: REMAKE[.]"6 The relevant definition
of "reconstruct" is "to construct again" so as "to establish or
assemble again[.]" 7
None of those definitions encompasses
tearing down an existing structure in order to build a new
structure in a new location.
High Point identified Calhoun, GA NG, LLC v. Century Bank
of Georgia as support for the proposition that an easement may
include the right to relocate a structure, despite the absence
of the word "relocate" in the agreement. 740 S.E.2d 210 (Ga.
Ct. App. 2013) . However, that case is readily distinguishable.
Maintain Definition, Merriam-Webster Dictionary, available at
www.merriam-webster.com/dictionary/maintain . High Point makes
reference to several of these definitions in its own filings. Dkt.
No. 39 at 7-8.
Repair Definition, Merriam-Webster Dictionary, available at
www.merriam-webster.com/dictionary/repair.
Renovate Definition, Merriam-Webster Dictionary, available at
www.merriam-webster.com/dictionary/renOvate.
6 Remodel Definition, Merriam-Webster Dictionary, available at
www.merriam-webster.com/dictionary/remodel.
Reconstruct Definition, Merriam-Webster Dictionary, available at
www.merriam-webster.com/dictionary/renovate.
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The language contained in the easement agreement in Calhoun was
far more expansive. The easement agreement in Calhoun stated
that the parties, subject to limitations contained in other
portions of the agreement, would "have the right to expand,
alter, modify all or part of the buildings now or hereafter
constructed on said tracts, or develop said tracts in any manner
they see fit."
740 S.E.2d at 213 (emphasis in original) . That
broad language is readily distinguishable from the more limited
options presented in the Warranty Deeds. Moreover, in Calhoun,
the party who sought to move the easement was the owner of the
servient estate rather than, as here, the dominant estate. Id.
at 212 (citing Suntrust Bank v. Fletcher, 548 S.E.2d 630, 633-34
(Ga. Ct. App. 2001)) (stating the owner of a servient estate may
relocate an easement if permitted in the instrument creating the
easement as an exception to the general rule that an easement
with a fixed location cannot be moved without consent of the
owners of both estates).
Additionally, High Point's ability to maintain, repair,
renovate, remodel, and reconstruct is expressly limited by the
Warranty Deeds to actions that do not "materially alter[]" the
"basic character" of the structure. "Basic" is defined by
Merriam-Webster as "of, relating to, or forming the base or
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essence: F(JNDAMENTAL[.]"8 The relevant definition of "character"
is the "main or essential nature especially as strongly marked
and serving to distinguish[.]" 9
High Point argues that it "has no intention of 'materially
altering' the main or essential nature of Brick-Kiln Dock"
because the new dock "will have the same basic components, be
constructed of the same or similar materials, and serve the same
purpose, which is non-commercial deep water access for the same
group of private rights holders." Dkt. No. 39 at 8. The Court
is not convinced by that argument. High Point's statement
implies that the materials used in constructing the dock are
part of its "basic character," but the location is not. Such an
argument is strained. Location is clearly an aspect of a
structure's "basic character." Almost any general description
of a building or structure would include its location. All of
High Point's proposed options would alter the basic character of
Brick-Kiln Dock.
The Warranty Deeds also state that High Point cannot
"perform any new construction or change the topography of the
land without first having obtained the permission in writing" of
the Park Service. AR 0205. Merriam-Webster defines
8
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1
Basic Definition, Merriam-Webster Dictionary, available at
www.merriam-webster.com/dictionary/basic.
Character Definition, Merriam-Webster Dictionary, available at
www.merriam-webster.com/dictionary/character.
17
"topography" as "the configuration of a surface including its
relief and the position of its natural and man-made
features[.]" ° "The law favors a construction that will uphold
the contract as a whole, and the entire contract should be read
in arriving at the construction of any part." Mon Arni Int'l
Inc. v. Gale, 592 S.E.2d 83, 86 (Ga. Ct. App. 2003) (quoting
Atlanta Dev., Inc. v. Emerald Capital Invs., LLC, 574 S.E.2d
585, 590 (Ga. Ct. App. 2002)). Building a dock in a new
location farther up Hawkins Creek or on a different river,
Brickhill River, would certainly change "the configuration of a
surface" by changing "the position of its . . . man-made
features." High Point's interpretation of the Warranty Deeds'
language stating that High Point may maintain, repair, renovate,
remodel or reconstruct the Brick-Kiln Dock so long as the basic
character of the dock is not materially altered directly
conflicts with the language requiring High Point to obtain
written permission before changing the topography of the area.
In sum, High Point does not have the reserved right to relocate
the dock.
High Point's access to High Point Compound has not been cut
off yet. At the present time, travelling to High Point Compound
has been made less convenient and more difficult but is
10
Topography Definition, Merriam-Webster Dictionary, available at
www.merriam-webster.com/dictionary/topography.
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certainly not impossible. Thus, the Court is not confronted
with a situation where High Point's ability to use and enjoy
High Point Compound is eliminated. Under the current
circumstances, the Warranty Deeds do not grant High Point the
ability to pursue the three options High Point has proposed.
III. Whether, in the absence of a Reserved Right, the Wilderness
Act Prohibits the Relocation of the Dock.
The second part of the Park Service's reasoning was that,
absent a reserved right in the Warranty Deeds, the Park Service
was prohibited from authorizing the reconstruction of the dock
at another location. See AR 0735.
"Once federal land has been designated as wilderness, the
Wilderness Act places severe restrictions on commercial
activities, roads, motorized vehicles, motorized transport, and
structures within the area, subject to very narrow exceptions
and existing private rights." Wilderness Watch v. Mainella, 375
F.3d 1085, 1089 (11th Cir. 2004).
In 16 U.S.C. § 1133(c), the
Wilderness Act, in a section titled "Prohibition provisions:
commercial enterprise, permanent or temporary roads, mechanical
transports, and structures or installations; exceptions: area
administration and personal health and safety emergencies[,]"
states:
Except as specifically provided for in this
chapter, and subject to existing private rights,
there shall be no commercial enterprise and no
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permanent road within any wilderness area
designated by this chapter and, except as
necessary to meet minimum requirements for the
administration of the area for the purpose of
this chapter (including measures required in
emergencies involving the health and safety of
persons within the area), there shall be no
temporary road, no use of motor vehicles,
motorized equipment or motorboats, no landing of
aircraft, no other form of mechanical transport,
and no structure or installation within any such
area.
The Eleventh Circuit has described this language as a
"categorical" prohibition. Mainella, 375 F.3d at 1093; see also
Wilderness Watch, Inc. v. U.S. Fish & Wildlife Serv., 629 F.3d
1024, 1036 (9th Cir. 2010) ("The Wilderness Act prohibits the
development of any structure within a wilderness area, subject
to only one exception: 'except as necessary to meet minimum
requirements for the administration of the area for the purpose
of this chapter.'") (quoting 16 U.S.C. § 1133(c))."
As discussed above, the Park Service was correct to
conclude that High Point does not have an "existing private
right" to relocate the dock. Thus, entirely new structures,
such as the new docks proposed in High Point's Options One and
Two, are prohibited under the Wilderness Act unless they would
II
None of the "special provisions" set out in § 1133(d) apply. The
only one arguably relevant is § 1133(d) (1), which states that
"[w]ithin wilderness areas designated by this chapter the use of
aircraft or motorboats where these uses have already become
established, may be permitted to continue subject to such
restrictions as the Secretary of Agriculture deems desirable." That
provision mentions motorboat use but says nothing about structures
designed to enhance motorboat usage.
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be "necessary to meet minimum requirements for the
administration of the area for the purpose of [the Wilderness
Act]." The construction of a new dock for private use clearly
has nothing to do with the administration of the wilderness
area. In the same vein, the construction would not be
"necessary" for administration of the area. As a result, under
any standard of review, the Park Service's conclusion that the
Wilderness Act prohibited the relocation of the dock in the
absence of an existing private right was correct.
IV. Ownership of the Riverbeds and Marshlands
The foregoing analysis does not entirely dispose of High
Point's proposed options. High Point asserts that the Federal
Government does not own the riverbed and marshland areas because
that land belongs to the State of Georgia absent a specific
grant from the State. High Point contends that no such grant
exists, and therefore the non-upland areas belong to the State.
According to High Point, each of its proposed options could be
completed by moving or extending only the portion of the dock
that is in the marshlands and keeping upland structures within
their existing footprint, which would seemingly be accomplished
by connecting the existing upland portion of the dock to the new
non-upland portion of the dock with a walkway. See Dkt. No. 2,
¶ 95; AR 0366.
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High Point submitted numerous documents to the Park
Service to support its contention that the State owned the
marshlands and the tidelands and asked the Park Service to
reconsider its prior decisions. On December 12, 2012, the Park
Service responded to this information and declined to change its
earlier conclusions. See AR 0943. The Park Service agreed that
High Point's September 27, 2012 letter and its supporting
documentation tended to support High Point's contention that
Georgia, and not the United States, owns the tidelands and
marshlands around Hawkins Creek. AR 0945. The Park Service,
however, also identified evidence it uncovered that suggested
otherwise. Id. The Park Service concluded that "the issue of
who owns the marshlands is still not clear-cut" but expressed
that "for a number of reasons [it did] not believe that it [was]
necessary to resolve this issue in order to make a determination
on [High Point's] request to relocate Brick-Kiln Dock." Id.
First, the Park Service asserted that the United States at
least had color of title over the marshlands and tidelands at
issue. AR 0945. Second, the Park Service stated that, even if
the State owned the marshlands and tidelands, the Park Service
would still have regulatory authority and would still be
required to deny the permit. AR 0946. The Park Service cited
several sources of authority for this proposition. Under 36
C.F.R. § 1.2(a) (3), Park Service regulations apply to persons
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entering, using, or visiting "[w]aters subject to the
jurisdiction of the United States located within the boundaries
of the National Park System . . . without regard to the
ownership of submerged lands, tidelands, or lowlands[.]"
Another Park Service regulation states that "[clonstructing
[a] structure [or] boat dock . . . upon across, over, through,
or under any park areas, except in accordance with the
provisions of a valid permit, contract, or other written
agreement with the United States, is prohibited." 36 C.F.R. §
5.7.
High Point, in its Motion for Summary Judgment, argues that
only federally-owned land can be designated as wilderness or
potential wilderness. Therefore, High Point concludes that the
Park Service has no regulatory authority whatsoever over
construction on non-federal land. High Point is not the first
litigant to question the federal government's authority to
regulate state or private interests within the boundaries of a
national park. See Dunn-McCampbell Royalty Interest, Inc. v.
Nat'l Park Serv., 630 F.3d 431, 442 (5th Cir. 2011); State of
Minnesota v. Block, 660 F.2d 1240, 1248-51 (8th Cir. 1981);
United States v. Lindsey, 595 F.2d 5, 6 (9th Cir. 1979); United
States v. Brown, 552 F.2d 817, 821-23 (8th Cir. 1977) . Courts
have repeatedly rejected such arguments.
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Congress, pursuant to the Property Clause of the United
States Constitution, has authority to regulate conduct over
nonfederal land encompassed within the boundaries of a national
park in order to protect federal property. Brown, 552 F.2d at
822 ("[W]e view the congressional power over federal lands to
include the authority to regulate activities on non-federal
public waters in order to protect wildlife and visitors on the
lands."); see also Kieppe v. New Mexico, 426 U.S. 529, 538-41
(1976) ("the power granted by the Property Clause is broad
enough to reach beyond territorial limits.") (citing Camfield v.
United States, 167 U.S. 518 (1897) (upholding federal regulation
of fences built on private land adjoining public land))
In the present case, Congress authorized the Park Service
to regulate the lands comprising the Cumberland Island National
Seashore and instructed that such lands be administered in
accordance with the applicable provisions of the Wilderness Act.
See Mainella, 375 F.3d at 1088 (citing Wilderness Designation §
2(c), 96 Stat. 709); see also 16 U.S.C. § 1133(b) ("each agency
administering any area designated as wilderness shall be
responsible for preserving the wilderness character of the
area"). Section 1133(c) of the Wilderness Act, as discussed
above, prohibits structures or installations "within any such
[wilderness] area." 16 U.S.C. § 1133(c).
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Here, the Wilderness Designation identified State-owned
land as potential wilderness. See Dkt. No. 28, ¶ 54 ("Some of
the lands referred to in the Wilderness Designation as
'potential wilderness,' notably marshlands and tidelands, were
not at the time of the Wilderness Designation (and are not now)
owned by the United States Government"); AR 0772 (legislative
history stating that "[m]ost of the potential wilderness is
intertidal area owned by the State of Georgia") . Policy
statements and legislative history indicate that the Park
Service is required to manage potential wilderness areas as
wilderness to the extent possible. See AR 0765; AR 0772; Dkt.
No. 28-1 at 90 (§ 6.3.1). Agencies may regulate private and
non-federal lands within national parks in order to protect
federal lands. See Brown, 552 F.2d at 822-23; Free Enter. Canoe
Renters Ass'n of Mo. v. Watt, 711 F.2d 852, 856 (8th Cir. 1983)
("Given the recognized federal power to regulate nonfederal
land, there is no reason to doubt the Park Service's
interpretation of its own regulation, which is that it covers
all the [national park] area, not just the portions that are
federally owned."). Accordingly, the Park Service had the
authority to deny a request for permission to construct on
marshlands and tidelands designated as wilderness and potential
wilderness areas and located within the Cumberland Island
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National Seashore, regardless of the ownership of the lands at
issue.
The Court finds it noteworthy to separate two distinct
issues regarding High Point's contentions and proposed options
that would only involve changes over non-upland areas: whether
the Park Service has authority to regulate the land in question
and whether the Park Service has an affirmative obligation to
consent to the proposed options in question. The record
indicates that the State of Georgia will not authorize
construction in marshlands owned by the State without consent of
the upland owner. See Dkt. No. 28, ¶ 62. High Point identifies
language in the Warranty Deeds which states that the Federal
Government will not "unreasonably interfere" with High Point's
use of Brick-Kiln Dock as the source of an affirmative
obligation on the Park Service to consent to High Point's
proposed options. Given the significant aesthetic impact these
changes would have on wilderness areas, the Court cannot find
that the Park Service's failure to consent to High Point's
preferred options (even those that would only involve
construction over non-upland areas) constitutes unreasonable
interference. Thus, even disregarding the Park Service's
regulatory authority over the lands at issue, the Park Service,
as representative of the upland owner, cannot be forced to
consent to a permit request under these circumstances.
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V. Whether the Quiet Title Act Prohibits Adjudication of the
Federal Government's Ownership of the Marshland.
The Park Service contends that High Point cannot challenge
the ownership of the marshlands and tidelands in this suit as a
result of the Quiet Title Act. 28 U.S.C. § 2409a. The Park
Service argues that the "Quiet Title Act provides an exclusive
waiver of the United States' sovereign immunity for an adverse
claimant to challenge the United States' title to real property"
and "such a challenge will not lie under the APA." Dkt. No. 36
at 54 (emphasis in original) (citing Block v. North Dakota, 461
U.S. 273, 286 & n.22 (1983)).
As High Point noted, a recent United States Supreme court
case dealt with this issue. See Match-E-Be-Nash-She-Wish Band
of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012) . The
Court determined that the Quiet Title Act only applies to "a
particular type of action, known as a quiet title suit," which
is "a suit by a plaintiff asserting a 'right, title, or
interest' in real property that conflicts with a 'right, title,
or interest' the United States claims." Id. at 2205 (quoting 28
U.S.C. § 2409a(d)). The Court found that the plaintiff's suit
in Patchak was "not a quiet title action, because although it
contest[ed] the Secretary's title, it [did] not claim any
competing interest in the . . . Property." Id. at 2206
(emphasis in original). Similarly, the Quiet Title Act does not
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apply to High Point's suit because High Point, like the
plaintiff in Patchak, is not an adverse claimant; it is not
seeking to divest the United States of ownership to claim it for
itself. See id. (stating that "quiet title" is "universally
understood to refer to suits in which a plaintiff not only
challenges someone else's claim, but also asserts his own right
to disputed property") . Accordingly, High Point is not barred
from raising the ownership issue in the present suit; however,
as discussed above, deciding who owns the marsh and tidelands at
issue is not necessary for the resolution of this case.
CONCLUSION
It is unfortunate that High Point and the Park Service have
not yet resolved the situation caused by siltation in Hawkins
Creek. As demonstrated by the administrative record, High Point
has consistently and conscientiously sought a mutuallyacceptable solution. It is also evident from the administrative
record that High Point has been a good steward of the land.
High Point's request is, given the circumstances, quite modest
and understandable. However, this Court, like the Park Service,
is constrained by applicable law.
For the reasons stated above, High Point's Motion for
Summary Judgment (Dkt. No. 28) and its Motion for a Status
Conference (Dkt. No. 67) are DENIED.
The Park Service's Cross
Motion for Summary Judgment (Dkt. No. 36) is GRANTED.
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The Clerk
of Court is directed to close the case and enter the appropriate
judgment.
SO ORDERED, this 27TH day of February, 2015.
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L~
LISA GODBEY OOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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