Boston Redevelopment Authority v. National Park Service et al
Filing
68
Chief Judge Patti B. Saris: MEMORANDUM and ORDER. Plaintiff's Motion for Summary Judgment Docket No. 46 isDENIED. Defendants Motion for Summary Judgment Docket No. 35 is ALLOWED. (Geraldino-Karasek, Clarilde) (Main Document 68 replaced on 8/26/2015 to correct date on Page 9 ) (Geraldino-Karasek, Clarilde).
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
BOSTON REDEVELOPMENT AUTHORITY, )
Plaintiff,
)
)
v.
)
)
NATIONAL PARK SERVICE and
)
SALLY JEWELL, as Secretary of
)
the Interior,
)
Defendants.
)
)
Civil Action No. 14-12990-PBS
MEMORANDUM AND ORDER
August 26, 2015
Saris, U.S.D.J.
Plaintiff Boston Redevelopment Authority (BRA) is the owner
of Long Wharf Pavilion, an open-air structure built in 1988 on
Long Wharf in Boston Harbor. BRA seeks to convert Long Wharf
Pavilion into a restaurant. But the National Park Service (NPS)
insists that the pavilion is protected because of a federal grant
awarded to BRA from the Land and Water Conservation Fund (LWCF)
in 1981. In support of its position, NPS relies on a map of Long
Wharf in its records dated March 27, 1980. BRA now challenges
NPS’s reliance on this 1980 map under the LWCF Act,
Administrative Procedure Act (APA), Declaratory Judgment Act, and
the judicial estoppel doctrine. The parties have filed crossmotions for summary judgment. (Docket Nos. 35, 46). After a
hearing and review of the record, Plaintiff’s Motion for Summary
1
Judgment (Docket No. 46) is DENIED. Defendants’ Motion for
Summary Judgment (Docket No. 35) is ALLOWED.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1965, Congress passed the Land and Water Conservation
Fund Act (LWCF Act), which established a funding source for state
and local governments to plan, purchase, and develop public
outdoor recreation spaces. In exchange for the funding, state and
local governments agree to the following restriction under
Section 6(f)(3) of the LWCF Act:
No property acquired or developed with assistance under this
section shall, without the approval of the Secretary, be
converted to other than public outdoor recreation use.
54 U.S.C. § 200305(f)(3). LWCF applicants must submit a “project
boundary map” as part of their grant application to establish the
area that will be protected by Section 6(f). (AR 604); Docket No.
45 ¶¶ 15-17. NPS then reviews and approves this so-called “6(f)
restricted area” before awarding the grant.
This case concerns the boundaries of the 6(f) restricted
area at Boston’s Long Wharf. Specifically, the question presented
is whether an open-air structure known as Long Wharf Pavilion
falls within the restricted area. Plaintiff Boston Redevelopment
Authority (BRA) applied for funding from the LWCF in 1980. BRA’s
application, dated March 24, 1980, stated that the proposed
project was the “first phase reconstruction of Long Wharf and the
construction of a portion of a Long Wharf Park by the Boston
2
Redevelopment Authority.” (AR 6). A fifteen-page narrative in the
application further described the project as: (1) repairing and
rebuilding Long Wharf’s granite seawall; (2) repairing and
rebuilding the wood piling and decking around the perimeter of
Long Wharf; and (3) construction of new pavement and platforms,
with a park and public open space on the seaward end of the
wharf. (AR 14-15). NPS’s records include a map of Long Wharf
titled “PROJECT AREA MAP” and a matching “METES AND BOUNDS
DESCRIPTION.” (AR 56-57). Based on this map, almost all of Long
Wharf is designated as “TOTAL PARK PROJECT AREA.” Additionally,
the seaward tip of the wharf is designated “PHASE I - PARK AREA.”
A notation on this map reads: “6f boundary map 3/27/80.”
BRA’s application for a LWCF grant was a two-step process.
BRA first submitted its application to the Massachusetts Division
of Conservation Services (DCS), which is the state agency
responsible for reviewing LWCF proposals and performing on-site
inspections. After approving BRA’s application, DCS then
forwarded it to NPS, which administers the LWCF program on behalf
of the U.S. Department of the Interior.1 NPS awarded the grant to
BRA in May 1981.
Relevant here, a public open-air structure on the seaward
tip of Long Wharf was also part of BRA’s redevelopment efforts.
1
To be precise, the application was sent to the Heritage
Conservation and Recreation Service, a federal agency later
absorbed by the National Park Service.
3
Shortly after the LWCF grant was approved, the Massachusetts Bay
Transportation Authority (MBTA) approached BRA about funding and
building the structure if it included an emergency stairwell and
ventilation shaft for the MBTA subway tunnel underneath. The MBTA
also requested easements for maintenance and emergency egress. In
1983, BRA requested permission from NPS before moving forward,
mindful of a potential violation of the 6(f) restricted area. (AR
182-85). NPS found that the project would not constitute a
conversion of any 6(f) restricted area and approved the
construction of the structure. It reasoned:
It is apparent from the documentation submitted that the
easements will not have a significant impact upon the
recreational utility of the wharf and recreation opportunity
will be increased by the addition of the pavilion which will
provide shade and protection from the weather on the otherwise
open facility.
(AR 182). In 1988, the MBTA completed the structure today known
as Long Wharf Pavilion.
Fast-forward twenty years. In 2006, BRA began exploring the
possibility of converting Long Wharf Pavilion into a restaurant.
BRA issued a Request for Proposal to developers and obtained a
construction license from the Massachusetts Department of
Environmental Protection. This is when the Long War for Long
Wharf began. Concerned Boston residents contacted NPS
headquarters, asking about potential LWCF restrictions on the
pavilion. (AR 277-82). NPS forwarded these questions to DCS,
where a state employee found in its records a 1983 map of Long
4
Wharf with “Long Wharf 6-F” in red handwriting. (AR 297). Based
on this map, DCS e-mailed NPS in February 2009 and stated that
Long Wharf Pavilion was not located in the 6(f) restricted area.
An NPS employee in Philadelphia replied via e-mail that he
concurred with DCS’s findings. (AR 277). As a result, DCS
informed BRA and the Massachusetts Department of Environmental
Protection that it could move forward with converting Long Wharf
Pavilion into a restaurant, assuming certain minor
accommodations.2 (AR 284).
But that is not the end of the story. In 2012, NPS changed
its position after being contacted by two retired NPS employees.
The employees had read an article about citizens appealing the
Department of Environmental Protection’s decision to issue BRA
its construction license. They then contacted NPS, recalling that
the Long Wharf Pavilion was inside the 6(f) restricted area
established by the 1981 LWCF grant. In response, NPS asked DCS to
send over the 1983 map from its file. NPS also dug into its own
records and uncovered the 1980 map. (AR 288-96). It saw the
notation on the map: “6f boundary map 3/27/80.” It also found the
metes and bounds description of the project area. Based on these
documents, NPS changed its mind in December 2012 and found that
Long Wharf Pavilion was part of the 6(f) restricted area. (AR
2
Not at issue here, this included a slight adjustment to the
boundaries of the proposed restaurant so that it would not
encroach on the 6(f) restricted area as outlined in the 1983 map.
5
301). An NPS official stated: “The darken shaded area associated
with the Phase I proposed development at this site is the limit
of the 6(f) boundary area.” (AR 301).
BRA met with NPS at Boston City Hall in April 2014 to
convince NPS that it should rely on the 1983 map instead of the
1980 map. But BRA was unsuccessful. (Docket No. 58-3:49). NPS
issued its final decision in June 2014, reiterating that “the map
dated March 27, 1980 is the original Section 6(f)(3) map.” (AR
303). BRA now challenges the decision under the LWCF Act, APA,
Declaratory Judgment Act, and the judicial estoppel doctrine.
II. DISCUSSION
BRA argues that Long Wharf Pavilion does not fall into the
6(f) restricted area established by the 1981 LWCF grant for two
reasons: (1) NPS’s decision to rely on the 1980 map to define the
6(f) restricted area is arbitrary, capricious, not in accordance
with law, or without observance of procedure required by law; and
(2) NPS should be judicially estopped from relying on the 1980
map after initially taking the position in 2009 that the Long
Wharf Pavilion did not fall into the 6(f) restricted area. Both
of these arguments miss the mark.
A. Declaratory Judgment and Violations of the LWCF Act and
Administrative Procedure Act (Counts 1, 3, and 4)
The first issue is whether NPS violated the APA when it
concluded that Long Wharf Pavilion falls into the 6(f) restricted
area. BRA argues that: (1) the parties never agreed to the 1980
6
map defining the 6(f) restricted area; (2) the 6(f) restricted
area in the 1980 map is inconsistent with other documents in
NPS’s records; (3) many areas in NPS’s alleged 6(f) restricted
area have been used for purely commercial purposes since 1980;
(4) NPS has taken different positions regarding the scope of the
6(f) restricted area; (5) BRA did not have the authority to
assent to the expansive 6(f) restricted area listed in the 1980
map; (6) the 1980 map did not conform to the requirements set
forth in the LWCF manual; and (7) NPS would have discovered the
flaws in the 1980 map if it had properly conducted closeout
procedures when the Long Wharf grant was closed in 1986. But none
of these attacks on NPS’s decision succeed.
The appropriate scope of review is set forth in the
Administrative Procedure Act (APA). Under the APA, courts may set
aside agency actions, findings, and conclusions if they are
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2). An agency decision
fails this test “if the agency relies 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.” Massachusetts v.
U.S. Nuclear Regulatory Comm’n, 708 F.3d 63, 73 (1st Cir. 2013)
(quotation marks omitted).
7
Ordinarily, APA review is limited to the administrative
record. Lovgren v. Locke, 701 F.3d 5, 20 (1st Cir. 2012); see
also Liston v. Unum Corp. Officer Severance Plan, 330 F.3d 19, 23
(1st Cir. 2003) (“[H]ow could an administrator act unreasonably
by ignoring information never presented to it?”). Nevertheless,
“[t]he fact that review sometimes or often focuses on the initial
administrative record does not mean it must, or always, will do
so.” Valley Citizens for a Safe Env’t v. Aldridge, 886 F.2d 458,
460 (1st Cir. 1989) (Breyer, J.). For example, the Court may
supplement the record when there is a “strong showing of bad
faith or improper behavior by agency decision makers.” Town of
Winthrop v. F.A.A., 535 F.3d 1, 14 (1st Cir. 2008). Courts have
also suggested that limited discovery may be necessary when a
plaintiff shows that it will find material in the agency’s
possession indicative of an incomplete record. See Air Transp.
Ass’n of Am., Inc. v. Nat’l Mediation Bd., 663 F.3d 476, 487-88
(D.C. Cir. 2011). Alternatively, supplementation of the record
may be permissible when there is “a failure to explain
administrative action as to frustrate effective judicial review.”
Olsen v. United States, 414 F.3d 144, 155-56 (1st Cir. 2005)
(quoting Camp v. Pitts, 411 U.S. 138, 142-43 (1973)). Both
parties took depositions relating to whether the 1980 map in the
NPS files was submitted in connection with BRA’s 1981 grant
application. Although the depositions were not part of the
8
administrative record, the parties jointly urge the Court to
consider the depositions on the question of whether the 1980
boundary map was improperly included in NPS’s records, and
whether the 1983 map was the true 6(f) map of record.
BRA suggests that the Court can review evidence outside the
administrative record under the Declaratory Judgment Act. But
this is wrong. The Declaratory Judgment Act, 28 U.S.C. §§ 22012202 “does not itself confer subject matter jurisdiction, but
rather, makes available an added anodyne 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); see also Tyler v. Michaels Stores, Inc., 840 F.
Supp. 2d 438, 452 (D. Mass. 2012)(explaining that “dismissal of
the underlying claims requires dismissal of the claim for
declaratory relief as well”). NPS issued an adjudicatory decision
in June 2014 after reviewing its record and providing BRA an
opportunity to respond at a meeting. As a result, the Court will
review NPS’s decision under the APA to determine whether it was
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2); see also Butte Cty.
v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010) (explaining that
informal agency adjudication is subject to judicial review under
§ 706 of the APA). The Court declines to act as an initial
9
decision-maker and exercise de novo review.3
Because APA review is deferential and narrow, the First
Circuit has observed that the summary judgment rubric has a
“special twist in the administrative law context.” Assoc.
Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 109 (1st Cir.
1997). The “real question” is “whether the administrative record,
now closed, reflects a sufficient dispute concerning the factual
predicate on which [the agency] relied . . . to support a finding
that the agency acted arbitrarily or capriciously.” Mass. Dep’t
of Pub. Welfare v. Sec’y of Agric., 984 F.2d 514, 526 (1st Cir.
1993). “Because the APA standard affords great deference to
agency decisionmaking and because the Secretary’s action is
presumed valid, judicial review, even at the summary judgment
stage, is narrow.” Assoc. Fisheries, 127 F.3d at 109. Applying
this deferential standard, the Court concludes that BRA’s
challenges to NPS’s decision fall short.
1. The 1980 Map
For starters, BRA denies that it ever submitted the 1980 map
3
BRA also submitted a motion for leave to submit a posthearing brief, where it argued for the first time that the Court
could determine the rights of the parties in the first instance.
Alternatively, BRA suggested that the APA allowed the court to
invoke its equitable powers and treat the case as a breach of
contract action. The Court denied BRA’s motion as untimely
(Docket No. 67). In its initial memorandum, BRA had argued that
the appropriate standard of review was set forth in the APA. See
Docket No. 44:7 (“The LWCF does not provide for its own standard
of review; therefore, the appropriate scope of review is the
standard set forth in the APA”).
10
as part of its LWCF grant application or intended the map to
outline the 6(f) boundary. Instead, BRA insists that NPS
mistakenly decided to treat the 1980 map as the 6(f) boundary map
without a meeting of the minds. BRA also argues that this mistake
was unreasonable because the 1980 map was inconsistent with other
documents in NPS’s records. But these arguments ignore the ample
evidence to the contrary.
To investigate BRA’s concerns regarding the 1980 map, the
parties conducted limited discovery into the map’s origins.4 But
even viewing the facts in the light most favorable to BRA, there
is no evidence that NPS engaged in improper behavior by
fabricating or mislabeling the 1980 map or otherwise relied on it
in bad faith or by mistake. To the contrary, discovery showed
that BRA had several maps of Long Wharf in its records that
looked quite similar to the 1980 map. Former DCS employee Joel
Lerner also testified that he recalled receiving the 1980
boundary map and the Metes and Bounds description from BRA and
sending it on to NPS with BRA’s grant application. (Docket No. 45
¶¶ 72-73, 75). Similarly, former NPS employee Andrew Minarcik
stated that he was initially assigned to review BRA’s LWCF grant
and wrote the notation: “6f boundary map 3/27/80.” (Docket No. 45
4
At the hearing, the Court indicated its willingness to
remand the case back to NPS to see if the agency would change its
position in light of the evidence unearthed in discovery. Both
parties declined.
11
¶ 37). These facts establish that the 1980 map was created by BRA
and received by NPS as part of the Long Wharf LWCF grant
application.
The evidence in the administrative record further alleviates
any uncertainties about the 1980 map’s provenance. The 1980 map
was labeled “PROJECT AREA MAP,” which is consistent with the LWCF
Grant Manual in effect at the time. See AR 604 (“The area to be
included under the conversion provisions of Section 6(f)(3) of
the Fund Act and Manual Part 685 shall be clearly delineated on a
dated project boundary map to be included with each application
or element in a consolidated project.” (emphasis added)). The map
was also submitted with a metes and bounds description that was
consistent with the map and with the requirements of the LWCF
Grant Manual. See AR 604-05 (instructing that the lands afforded
Section 6(f)(3) protection could be identified by metes and
bounds). BRA does not point to any maps existing in 1980 in NPS,
BRA, or DCS’s files that meet all of the LWCF Grant Manual
requirements. Further, none of the other maps or pictures
submitted with BRA’s 1980 grant application come even close to
satisfying the requirements of a 6(f) project boundary map. There
is also no evidence in the record that the 6(f) boundary was ever
formally amended.5 (Docket No. 45 ¶ 45). And it is highly
5
There were two amendments to the project, neither of which
are relevant here. NPS and DCS amended the end date of the grant
in February 1985. They also amended the project’s scope to
12
unlikely that NPS employees would have approved of BRA’s grant
application and checked off the boxes for “Boundary Map” and
“Adequacy of 6(f) area” without a 6(f) boundary map like the 1980
map in the application. See 36 C.F.R. § 59.3(a) (“Section 6(f)(3)
of the L&WCF Act is the cornerstone of Federal compliance efforts
to ensure that the Federal investments in L&WCF assistance are
being maintained in public outdoor recreation use.”).6
The project narrative that BRA submitted with its grant
application confirms that the 1980 map was BRA’s proposal for the
6(f) boundary. BRA’s narrative states that the “project area as
shown on ‘Project Area Map’, includes Long Wharf, the public area
around the Waterfront Hotel, and the small stretch of waterfront
between Long and Central Wharves.” (AR 15). According to the
narrative, the LWCF funds would also be used to rebuild wooden
decks “along the northern, eastern and a section of the southern
edge as shown on the attached plan.” These references to the
“Project Area Map” and wharf decks on the “attached plan”
perfectly match up with the 1980 map but not with any other
exclude construction of perimeter wood docking and walkways in
November 1986.
6
BRA also appears to argue that NPS waived its right to use
the 6(f) boundaries in the 1980 map because its map did not
satisfy every requirement of the LWCF grant manual. But BRA
provides no authority to support this bare assertion. See Wood v.
Milyard, 132 S. Ct. 1826, 1835 (2012) (“Waiver is the intentional
relinquishment or abandonment of a known right.”). At most, NPS
waived its right to require BRA to submit a map meeting every
requirement of the LWCF grant manual.
13
pictures or maps from BRA’s application. More to the point, the
narrative states that the project would use LWCF funds to build a
park at the “eastern end of the wharf” as shown on the “attached
plan.” (AR 16). This proposed park matches up with a dark shaded
area in the 1980 map labeled “PHASE I - PARK AREA” covering the
entire eastern end of Long Wharf, including the area currently
inhabited by Long Wharf Pavilion. Nowhere in these documents does
it indicate that the area of the wharf occupied by Long Wharf
Pavilion would be excluded from the 6(f) boundary. Rather, the
documents show that BRA proposed to use LWCF funds to redevelop
Long Wharf generally, including the construction of a park on the
eastern end of the dock.
To put any doubts to rest, the record shows that DCS resubmitted the 1980 map and the metes and bounds description when
it sought NPS’s approval in 1983 for MBTA to build Long Wharf
Pavilion. Looking back, this submission was telling in two ways.
First, it is evidence of BRA and DCS’s understanding that the
1980 map depicted the official boundaries of the 6(f) restricted
area, certainly with respect to the “PHASE I - PARK AREA.”
Second, it also shows BRA’s understanding in 1983 that the MBTA
could not begin building the ventilation shafts and emergency
access in Long Wharf Pavilion without NPS’s consent. Especially
given the deferential standard of review, BRA has not shown that
it was arbitrary or capricious for NPS to rely on these factors
14
to conclude that the 1980 map contained the official 6(f)
boundaries. See M/V Cape Ann v. United States, 199 F.3d 61, 64
(1st Cir. 1999) (“So long as the agency’s determination is within
the bounds of reasoned decisionmaking, we may not set it aside,
regardless of whether we may have reached an opposite decision.”
(quoting Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc.,
462 U.S. 87, 105-06 (1983)).
BRA responds that several parts of the record refer to a
park of only about 20,000 square feet, including the project
narrative, pre-award on-site inspection report, and a press
release issued by NPS. BRA also points out that it submitted a
map to the Advisory Council on Historic Preservation in 1979 that
appears to limit the “PROPOSED DOCKSIDE PARK” to only the
southeastern portion of the wharf. These statements are accurate
reflections of the record. But the park at the seaward tip of
Long Wharf was just one part of the overall intended LWCF project
that included: (1) repairing and rebuilding Long Wharf’s granite
seawall; (2) repairing and rebuilding the wood piling and decking
around the northern, eastern, and southern edges of Long Wharf;
and (3) construction of new pavement and platforms, with a park
and public open space on the seaward end of the wharf. In other
words, BRA was seeking money for much more than just a park. At
the time it applied for LWCF funding, BRA also wanted to rebuild
the wooden decks and make other structural repairs and
15
improvements to the wharf. For this reason, it makes sense that
BRA’s proposed 6(f) restricted area extended beyond the park at
least to other seaward parts of Long Wharf that benefitted from
LWCF funding.
BRA also points to the 1981 project agreement between the
United States and Massachusetts, which required NPS to perform
the agreement in accordance with “maps . . . attached hereto or
retained by the State and hereby made a part hereof.” (A.R. 45)
(emphasis added). Because the only map labeled “6(f) boundary
map” in Massachusetts’s records is the 1983 map, BRA argues that
the 1983 map must govern. But BRA’s reliance on this contract
language is unavailing. For starters, the agreement recognizes
that maps can be “attached hereto” rather than “retained by the
State.” True to this language, the project agreement states at
the bottom of the first page that the “Project Application and
Attachments” are incorporated into the agreement. As a result,
NPS reasonably concluded that the 1980 boundary map was part of
BRA’s application and therefore incorporated into the contract.
Also, BRA ignores that the agreement only refers to maps
“retained by the State and hereby made a part hereof.” Given that
the agreement was signed in May 1981, there is no way that the
1983 map could have been “hereby made a part hereof” when it did
not even exist yet. As a result, the project agreement between
the United States and Massachusetts only further strengthens
16
NPS’s reliance on the 1980 map.
2. Whether Commercial Portions of Long Wharf Could be
Included in the 6(f) Boundary
BRA next appeals to reason. Back in 1981, BRA says it would
have been nonsensical to earmark the entirety of Long Wharf for
public outdoor recreation-as the 1980 map indicates-when certain
parts of Long Wharf were historically used for commercial
purposes. For example, Long Wharf in 1980 was used principally as
a docking facility for charter fishing boats, vessels belonging
to various municipal and regional policing agencies, and
excursion boats to Boston Harbor, the Boston Harbor Islands, and
Provincetown. Long Wharf also had a ticket booth, a parking lot,
and a concession stand. (AR 11). Along these same lines, BRA says
that it would have lacked the authority to agree to 6(f)
restrictions on the commercial portions of Long Wharf. In support
of this argument, BRA quotes from DCS’s 1979 Pre-Award On-Site
Inspection Report, which states:
The future of the area north of the park (including some of
the proposed walkways) is still uncertain. The Boston
Redevelopment Authority has offered a couple of alternatives:
a marina and/or commercial cruise and commuter ferry docking
sites. Since definite plans for this area have not been
developed, it is not known whether this section of the wharf
is eligible for funding by the Land and Water Conservation
Fund.
(Docket No. 38-6:4). BRA argues that this “area north of the
park” that DCS thought might be ineligible for LWCF funding is
the land now occupied by Long Wharf Pavilion. BRA also points to
17
a January 1981 letter stating that BRA was planning to build a
ferry terminal at Long Wharf that would not be a part of the LWCF
project.
But these selected quotations from NPS’s records are not
dispositive. For one thing, it is not obvious that BRA’s
documents are even talking about the area now occupied by Long
Wharf Pavilion. The 1980 map and narrative both indicate that BRA
planned to build a park on the seaward end of the wharf. There
was no carve-out for the area now occupied by Long Wharf
Pavilion.
In any event, courts have held that commercial structures
can aid public outdoor recreation by “adding to the scenic
character of the park.” Brooklyn Heights Ass’n, Inc. v. Nat’l
Park Serv., 777 F. Supp. 2d 424, 441 (E.D.N.Y. 2011) (holding
that a Tobacco Warehouse and Empire Stores building could be part
of a 6(f) boundary because “the intended use of the structures is
not relevant, much less controlling”); cf. Friends of the
Shawangunks, Inc. v. Clark, 754 F.2d 446, 449 (2d Cir. 1985)
(holding that the term “public outdoor recreation use” for
purposes of LWCF Section 6(f)(3) should be construed “broadly”).
Similarly, BRA’s application stated that building and remodeling
boat terminals on Long Wharf would provide the public with
continuing access and exposure to the harbor and the Boston
Harbor Islands Park System. (AR 18). Thus, these terminals served
18
an important public outdoor recreation use, even if they also had
commercial utility. The LWCF Grant Manual in effect in 1981 was
consistent with this view, allowing LWCF assistance for boating
facilities and marinas. See AR 401 (“Commercial charter fishing
or sightseeing boats are permissible marina leaseholders due to
their potential for expanding public waterfront access.”).
3. NPS’s Changing Views
BRA next argues that NPS acted arbitrary and capriciously
when it changed its mind, allowing the restaurant project to
proceed before rejecting it. Essentially, BRA suggests that NPS
cannot reconsider its decisions even after discovering a mistake.
But this is not the law. It is well-established that “an agency,
may, on its own initiative, reconsider its interim or even its
final decisions, regardless of whether the applicable statute and
agency regulations expressly provide for such review.” Chao v.
Russell P. Le Vrois Builder, Inc., 219 F.3d 219, 230 (2d Cir.
2002) (collecting cases); cf. R.I. Dep’t of Envtl. Mgmt. v.
United States, 304 F.3d 31, 40 (1st Cir. 2002) (explaining that
the APA’s finality requirement gives the agency an opportunity to
“apply its expertise and correct its mistakes”). Beyond that,
courts have found agencies to be arbitrary and capricious when
they chose not to reconsider their position after being alerted
to a potential mistake. See I.C.C. v. Bhd. of Locomotive Eng’rs.,
482 U.S. 270, 278 (1987) (explaining that an agency’s refusal to
19
reopen a proceeding can be arbitrary, capricious, and an abuse of
discretion); Kreis v. Sec’y of Air Force, 406 F.3d 684, 688 (D.C.
Cir. 2005) (“[T]he Board’s conclusion that reconsideration was
not authorized on the basis of newly discovered relevant evidence
was arbitrary and capricious.”). Granted, there could be a
problem if NPS unilaterally changed the 6(f) restricted area
without proper notice and procedure. But that is not what
happened here. NPS merely realized that its earlier position was
mistaken in light of newly discovered evidence from former NPS
employees who had familiarity with the 6(f) boundaries
established in BRA’s 1981 grant application.7 It also notified
the BRA and had a meeting for interested stakeholders to present
information.
B. Judicial Estoppel (Count 2)
BRA next invokes the doctrine of judicial estoppel, arguing
that NPS should not be allowed to reverse course after telling
the Massachusetts Department of Environmental Protection in 2009
that the Long Wharf Pavilion was not part of a 6(f) restricted
7
BRA also argues that NPS failed to properly conduct a
“close-out” process of the Long Wharf LWCF grant in 1986, which
would have possibly exposed the confusion between the 1980 map
and the 1983 map earlier. Even if this were true, BRA does not
explain why this means that NPS has surrendered LWCF protection
over Long Wharf Pavilion. This argument is waived. “It is not
enough merely to mention a possible argument in the most skeletal
way, leaving the court to do counsel’s work, create the ossature
for the argument, and put flesh on its bones.” United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
20
area. These representations later became part of the record
before the Massachusetts Office of Appeals and Dispute Resolution
and the Massachusetts Superior Court when citizens challenged the
issuance of the license under the Massachusetts Constitution. See
Mahajan v. Dep’t of Envtl. Prot., 984 N.E.2d 821 (Mass. 2013).
The Supreme Court has explained that “judicial estoppel is
an equitable doctrine invoked by a court at its discretion.” New
Hampshire v. Maine, 532 U.S. 742, 750 (2001). The judge-made
doctrine “prevents a litigant from prevailing in one phase of a
case on an argument and then relying on a contradictory argument
to prevail in another phase.” Thore v. Howe, 466 F.3d 173, 181
(1st Cir. 2006) (quotation marks omitted). At a minimum, two
conditions must be satisfied before judicial estoppel can attach.
First, a party must be taking positions that are “directly
inconsistent, that is, mutually exclusive.” Alt. Sys. Concepts,
Inc. v. Synopsys, Inc., 374 F.3d 23, 33 (1st Cir. 2004). Second,
the responsible party must have “succeeded in persuading a court
to accept its prior position.” Id. Courts also frequently
consider a third factor: “whether judicial acceptance of a
party’s initial position conferred a benefit on that party.” Id.;
see also InterGen N.V. v. Grina, 344 F.3d 134, 144 (1st Cir.
2003) (declining to invoke judicial estoppel where the party
gained “absolutely no advantage” from changing positions).
It is also “well settled that the Government may not be
21
estopped on the same terms as any other litigant.” Heckler v.
Cmty. Health Servs. of Crawford Cty., Inc., 467 U.S. 51, 61
(1984). The First Circuit has “repeatedly refused to apply
estoppel against the government in ordinary situations where a
private party would or might have been estopped.” Nagle v. ActonBoxborough Reg’l Sch. Dist., 576 F.3d 1, 4 (1st Cir. 2009)
(collecting cases). For example, the First Circuit has rejected
“a broad rule that prevents the sovereign from enforcing valid
laws for no better reason than that a government official has
performed his enforcement duties negligently.” Dantran, Inc. v.
U.S. Dep’t of Labor, 171 F.3d 58, 66 (1st Cir. 1999). The
reluctance to permit estoppel against the United States is based
on “a concern for the public purse and a recognition that the
government-unlike the normal actor-is an enterprise so vast and
complex as to preclude perfect consistency.” Howell v. F.D.I.C.,
986 F.2d 569, 575 (1st Cir. 1993). Additionally, it would raise
potential separation-of-powers concerns if the judiciary were to
use a judge-made doctrine like judicial estoppel to prevent the
Executive Branch from enforcing laws enacted by Congress.
Dantran, 171 F.3d at 66.
With these principles in mind, the Court declines to
exercise judicial estoppel here against NPS. There is no dispute
that NPS took two mutually exclusive positions, one before the
Massachusetts Department of Environmental Protection and a
22
different one here. The Court will also assume for the sake of
argument that NPS “succeeded”8 in persuading a “court”9 by its
earlier statements. But despite the presence of these two
factors, there are several meaningful reasons why judicial
estoppel is not appropriate here.
First, NPS was not harbor-ing any bad faith when it changed
positions regarding Long Wharf. When NPS was first asked to
decide whether BRA could convert the Long Wharf Pavilion into a
restaurant, nobody at NPS was aware of information concerning the
specific boundaries of the restricted area established decades
earlier. As a result, NPS understandably deferred to DCS’s
opinion, which was in part based on a map in its records from
1983. After two retired NPS employees alerted NPS that their
memory differed, however, the agency conducted further
8
Relying in part on NPS’s statements, the Massachusetts
Department of Environmental Protection issued a license to BRA.
But Massachusetts citizens challenged the license before the
Office of Appeals and Dispute Resolution, Massachusetts Superior
Court, and the Massachusetts Supreme Judicial Court (SJC). After
the SJC reversed the Superior Court, Massachusetts citizens
alerted the Superior Court of NPS’s new position regarding the
6(f) restricted area. As a result, the previous license was
vacated, and proceedings are currently stayed before the Office
of Appeals and Dispute Resolution.
9
The parties do not discuss in any detail whether the
Massachusetts Department of Environmental Protection should be
considered a “court” for purposes of judicial estoppel. Nor do
the parties discuss whether the Superior Court’s reliance on the
record from the Massachusetts Department of Environmental
Protection would constitute persuasion of a court for purposes of
judicial estoppel.
23
investigation and changed its position. See Intergen N.V., 344
F.3d at 144 (refusing to bar parties from adjusting their
position to “correct errors or to accommodate facts learned
during pretrial discovery”). The Court recognizes that NPS could
have-and should have-looked more carefully through its own
records at the outset rather than simply rely on the state
agency’s say-so. Nevertheless, the Court finds that NPS changed
its position in good faith after realizing a mistake. This is far
from the paradigmatic case for judicial estoppel where a crafty
litigant takes one calculated position early on in the litigation
and then adroitly flip-flops to another when expedient. Quite to
the contrary, NPS’s earlier position disadvantaged the government
by surrendering Long Wharf Pavilion’s LWCF protections. See id.
(explaining that judicial estoppel is appropriate when a litigant
is “playing fast and loose with the courts” and not otherwise).
As a result, the Court is not inclined to punish NPS for its good
faith mistake.
Second, the Court also respects the historic judicial
reluctance to estop the Executive from enforcing laws duly
enacted by Congress. Especially in the circumstances of this
case, judicial estoppel would not merely affect BRA and NPS.
Rather, NPS is responsible for enforcing LWCF restrictions that
preserve outdoor recreational spaces for the benefit of the
public at large. Further, the record shows that NPS’s change in
24
position is primarily because of over-reliance on a state
official’s research and inadequate investigation of the federal
file. See Dantran, 171 F.3d at 66 (rejecting rule that prevents
the sovereign from enforcing valid laws merely because a
government official has performed his enforcement duties
negligently). As a result, the Court declines to force NPS to
forfeit a significant land interest held for the public based on
NPS’s negligence and a judge-made discretionary doctrine. For
these reasons, the Court will also allow NPS’s motion for summary
judgment and deny BRA’s motion for summary judgment on Count 2.
C. Post-Script
At the hearing, BRA suggested that adopting the 1980 map
places many other commercial establishments built on Long Wharf
in jeopardy. NPS also appeared to agree that some commercial
establishments might need to be shut down under the 1980 boundary
map. To be clear, the Court’s ruling today only upholds NPS’s
finding that Long Wharf Pavilion falls into the 6(f) restricted
area at Long Wharf. The Court does not consider whether other
commercial establishments on Long Wharf also fall into the 6(f)
restricted area, especially those that fall into the “TOTAL PARK
PROJECT AREA” but not the “PHASE I - PARK AREA” in the 1980 map.
(AR 56). Long Wharf Pavilion falls within both boundaries. Nor
does the Court consider whether currently existing commercial
establishments would be entitled to affirmative defenses like
25
laches, estoppel, adverse possession, or lack of due process.
D. Exhibits
Exhibit A - Map in NPS’s records dated March 27, 1980 (AR 56)
Exhibit B - Map in DCS’s records from 1983 (AR 297)
III. ORDER
Plaintiff’s Motion for Summary Judgment (Docket No. 46) is
DENIED. Defendants’ Motion for Summary Judgment (Docket No. 35)
is ALLOWED.
/s/ PATTI B. SARIS
Patti B. Saris
Chief United States District Judge
26
EXHIBIT A
Case 1:14-cv-12990-PBS Document 52-1 Filed 07/13/15 Page 8 of 54
A.R.056
NPS1935
EXHIBIT B
A.R.297
NPS2192
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