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AMFAC Resorts v. United States Dept. of the Interior

May 23, 2001

AMFAC RESORTS, L.L.C., PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.
NATIONAL PARK HOSPITALITY ASSN., PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.
HAMILTON STORES, INC., PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.
ARAMARK SPORTS AND ENTERTAINMENT SERVICES, INC., PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth United States District Judge

MEMORANDUM OPINION

Now before the Court is a group of cases that implicate a variety of issues, all of which are covered in the defendants' motion to dismiss, and the parties' cross motions for partial summary judgment. At its heart, the dispute centers on the National Park Service's ("NPS") treatment of current and potential concessioners at various national parks. The plaintiffs--three of which are concessioners and one of which is an association of concessioners--all allege that various NPS regulations are contrary to Congressional pronouncements on national park concession management.

On April 24, 2001, the Court ruled that the plaintiffs were not entitled to discovery beyond the administrative record, and that certain confidential information could be shared with experts, provided various conditions were observed. The Court also ruled that day that Delaware North, Inc., a concessioner, was entitled to intervene in this matter on behalf of the defendants. Delaware North is a competitor of the plaintiffs, and seeks to become a concessioner in certain parks where the plaintiffs currently hold concession contracts.

To summarize the Court's holding, the Court first holds that the plaintiffs' Rule 56(f) motion to stay summary judgment proceedings and take discovery must be DENIED. *fn1 The Court next holds that the defendants' motion to dismiss must be DENIED with respect to the preferential right to renewal issue, but GRANTED with respect two other issues. *fn2 Finally, the Court holds that the disputed regulations are permissible in all respects save one. The defendants' regulations are generally concise, well-explained, and responsive to the many comments received from interested parties. The defendants only run afoul of the law in their requirement that concessioners bid on prospectuses or else lose their preferential right of renewal. An order consistent with this Opinion shall issue separately this date.

As a preliminary matter, the Court notes its jurisdiction under 28 U.S.C § 1331. The plaintiffs' well-pleaded complaints present an issue of federal law, and all parties concede as much. See Brief for Plaintiffs, Feb. 28, 2001, at 14-15; Brief for Defendants, Apr. 9, 2001, at 21. The law applicable to the resolution of this case is federal law, whether in constitutional, statutory, or common law form. See United States v. Kimbell Foods, Inc., 440 U.S. 715, 726-27 (1979) (quoting Clearfield Trust Co. v. United States, 318 U.S. 363, 366 (1943)) ("[A]gencies derive their authority to effectuate . . . transactions from specific Acts of Congress passed in the exercise of 'constitutional function or power', [and thus] their rights, as well, should derive from a federal source.").

I. THE DEFENDANTS' MOTION TO DISMISS

A. Background

The plaintiffs have been concessioners in various national parks for the past 30 years. *fn3 Their concession contracts are set to expire on December 31, 2001, and they are currently interested in continuing as concessioners. To achieve this goal, the plaintiffs must participate in a contracting process dictated by the NPS. In the spring of 2000, the NPS modified this process in light of recent legislation. *fn4

The new contracting process is chiefly controlled by an NPS regulation entitled "Concession Contracts." 65 Fed. Reg. 20630 (Apr. 17, 2000); see also 36 C.F.R. 51. This regulation, states the NPS, has "three major purposes": (1) to enhance the competitiveness of contract bidding by diminishing various concessioners' "preference in renewal", (2) to convert the valuation of concessioners' capital improvements from a "possessory interest" valuation to a "leasehold surrender interest" valuation, and (3) to explain various smaller provisions that "concession contracts will contain in the implementation of the 1998 Act." 65 Fed Reg. 20630-31 (Apr. 17, 2000); 36 C.F.R. 51. This regulation is supplemented by a second regulation, entitled "Standard Concession Contract", which incorporates the changed terms into a new contract. See 65 Fed. Reg. 26052. It is these two regulations, as well as any "prospectuses" *fn5 issued pursuant thereto, that the plaintiffs challenge in multiple respects.

The defendants move to dismiss two of the plaintiffs' many claims. Specifically, the defendants claim that the law of standing and ripeness prevent the plaintiffs from pursuing (1) their joint claim for a preferential right of renewal, and (2) Hamilton Stores' claim of unreasonable franchise fee. *fn6 These two claims will now be shortly described.

1. The Plaintiffs' Joint Claim of a Contractual Right to Preferential Renewal

All four plaintiffs claim that their concession contracts give them a preferential right of renewal. This right would give each plaintiff the right to match the best bid made on a prospectus, and thereby obtain the concession contract. The defendants deny that this right even exists, but also argue that, even if it does, this claim must be dismissed because it "essentially concerns what might happen to [the plaintiffs] upon the expiration of [their] Contracts." Brief for Defendants, Jan. 19, 2001, at 1-2. That is, as the disputed concession contracts have yet to be awarded, the plaintiffs have yet to be denied any contract. It is quite possible, argue the defendants, that the plaintiffs may obtain the sought after concession contracts, and thus suffer no harm from the loss of their preferential right of renewal.

2. Hamilton Stores' Claim on the Yellowstone Park Prospectus' Franchise Fee Requirement

By statutory mandate, the NPS is to set a minimum franchise fee based "upon consideration of the probable value to the concessioner of the privileges granted by the particular contract involved." 16 U.S.C. § 5952(4), 5956(a). The probable value of a contract's privileges, in turn, "shall be based on a reasonable opportunity for net profit in relation to the capital invested and the obligations of the contract." 16 U.S.C. § 5956(a). Thus, by statute, the NPS is required to determine the capital investment that a new concessioner will likely make if awarded the contract.

Generally speaking, when a new concessioner obtains a concession contract, that concessioner is required to purchase the exiting concessioner's inventory, equipment, and real property interests. AR, 17-18. These purchases, among others, make up the new concessioner's "capital investment." The greater a concessioner's capital investment will be, the lower the NPS sets the minimum franchise fee in the prospectus. Thus, an undervaluing of an exiting concessioner's inventory, equipment and real property interests will result in an overestimate of the minimum franchise fee required of new concessioners. This overestimate, in turn, might be unlawful if it were to deny a concessioner a "reasonable opportunity for net profit." 16 U.S.C. § 5956(a).

Hamilton Stores alleges that its inventory, equipment, and real property interests have been significantly undervalued and that the resulting minimum franchise fee for the Yellowstone contract is too high. *fn7 This, Hamilton argues, "flatly violates the statutory rule requiring NPS to offer concession contracts that would provide the concessioner with 'a reasonable opportunity for net profit in relation to capital invested.'" Brief for Hamilton Stores, Feb. 28, 2001, at 1.

It is important to recognize that, although Hamilton is alleging a miscalculation of its current possessory interests, its claim is from the perspective of a future concessioner. That is, the harm for which Hamilton is seeking redress is its future disbursement of excessive franchise fees, not the insufficient compensation paid to it as an exiting concessioner. *fn8

The Court now considers the defendants' arguments to determine whether the plaintiffs are properly before this Court.

B. Analysis

1. Standard of Review

If a plaintiff has failed "to state a claim upon which relief can be granted," a court may grant a defendant's motion to dismiss. Fed. R. Civ. P. 12(b)(6); see also Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000). In evaluating a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and give the plaintiff "the benefit of all inferences that can be derived from the facts alleged." Schuler v. United States, 617 F.2d 605,608 (D.C. Cir. 1979); see also Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). "However, legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness." Wiggins v. Hitchens, 853 F. Supp. 505, 508 n.1 (D.D.C. 1994) (citing 2A Moore's Federal Practice, § 12.07, at 63 (2d ed. 1986) (footnote omitted); Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987)).

2. The Law of Standing and Ripeness

The doctrines of standing and ripeness are "designed to test the fitness of controversies for judicial resolution." Louisiana Envtl. Action Network v. Browner, 87 F.3d 1379, 1382 (D.C. Cir. 1996). They both contain a "blend of constitutional requirements and prudential considerations." Valley Forge Christian college v. Americans United for Separation of Church and State, 454 U.S. 464 471 (1982); CC Distributors v. United States, 883 F.2d 146, 149 (D.C. Cir 1989).

(a) Standing

To have constitutional standing, a plaintiff must show that (1) it has "suffered an injury in fact" that is (2) "fairly . . . traceable to the challenged action of the defendant" and which (3) will be "redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations and internal quotations omitted); see also Allen v. Wright, 468 U.S. 737, 756 (1984); Warth v. Seldin, 422 U.S. 490, 508 (1975).

A plaintiff's alleged injury qualifies as a constitutional "injury in fact" if the plaintiff suffers an "invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560; Whitmore v. Arkansas, 495 U.S. 149, 155 (1990); Los Angeles v. Lyons, 461 U.S. 95, 102 (1983); Sierra Club v. Morton, 405 U.S. 727, 740-741, n.16 (1972). Of importance in the case sub judice, this Circuit has repeatedly recognized as an injury the "loss of . . . opportunity to compete for a contract. CC Distributors, 883 F.2d at 150; see also Lepelletier v. FDIC, 164 F.3d 37, 42 (D.C. Cir. 1998); DirectTV, Inc. v. FCC, 110 F.3d 816, 829 (D.C. Cir 1997).

In CC Distributors v. United States, this Circuit considered a government contractor's challenge to an Air Force policy which diminished the contractor's opportunity to secure contracts. The government argued that, since the contractor had not yet been denied a contract, it had not yet sustained a constitutional injury. C.C. Distributors, 883 F.2d at 149-50. The Court disagreed, and held that "a plaintiff suffers a constitutionally cognizable injury by the loss of an opportunity to pursue a benefit . . . even though the plaintiff may not be able to show that it was certain to receive the benefit had it been accorded the lost opportunity." Id. at 150. In support of this, the Court noted a broad variety of caselaw that supports the general proposition that the "denial of an opportunity" is a cognizable injury. Id. at 150 (citing Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264 (1977); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978); West Virginia Ass'n of Comm. Health Centers v. Heckler, 734 F.2d 1570 (D.C. Cir. 1984); National Ass'n of Neighborhood Health Centers, Inc. v. Mathews, 551 F.2d 321 (D.C. Cir. 1976)).

Apart from its constitutional dimensions, standing also has a prudential aspect. This aspect requires that a court determine whether the plaintiff's interests are "arguably within the zone of interests to be protected or regulated by the statute . . . in question." Association of Data Processing Serv. Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970). In other words, a court should ask "whether, in view of Congress' evident intent to make agency action presumptively reviewable . . . Congress intended for [a particular] class [of plaintiffs] to be relied upon to challenge agency disregard of the law." Clarke v. Security Industry Ass'n, 479 U.S. 388, 399-400 (1987); see also CC Distributors, 883 F.2d at 151.

(b) Ripeness

Although the ripeness doctrine is often understood to overlap with the standing doctrine, see Wyoming Outdoor Council v. United States Forest Serv., 165 F.3d 43, 48 (D.C. Cir 1999), it retains a separate analytical framework. The framework reveals the doctrine's dual pedigree--a pedigree that is partially traceable to Article III, but mostly traceable to the court's prudential goals of avoiding "abstract disagreements" and "premature adjudication." Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967); see also 13A Wright et al., Federal Practice and Procedure, § 3532.1, at 118-19 (2d ed. 1984) (recognizing the dual underpinnings of the single analytical framework).

In considering a claim's ripeness, a court is to evaluate "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 733 (1988); Abbott Laboratories, 387 U.S. at 149. A claim's fitness for judicial resolution hinges on "whether the issue is purely legal, whether consideration of the issue would benefit from a more concrete setting, and whether the agency's action is sufficiently final." Warren Corp. v. EPA, 159 F.3d 616, 621 (1998). From a more pragmatic perspective, courts often defer judgment if intervening circumstances are likely to make "[judicial] resolution of the dispute . . . unnecessary." Edison Elec. Institute v. U.S. E.P.A., 996 F.2d 326, (D.C. Cir. 1993); State Farm Mut. Auto. Ins. Co. v. Dole, 802 F.2d 474, 479 (D.C. Cir. 1986). With regard to the hardship caused by delayed review, courts generally consider hardship to be a "secondary concern" and only evaluate it if there are "doubts about the fitness [prong]." Consolidated Rail Corp v. United States, 896 F.2d 574, 577 (D.C. Cir. 1990); American Petroleum Inst. v. EPA, 906 F.2d 729, 739 n.13 (1990). In cases where the fitness prong is satisfied, "lack of hardship cannot tip the balance against judicial review." Id.; Askins v. District of Columbia, 877 F.2d 94, 98 (D.C. Cir. 1989); Consolidation Coal Co. v. Federal Mine Safety & Health Review Comm'n, 824 F.2d 1071, 1081-82 (D.C. Cir. 1987).

3. The Defendants' Motion to Dismiss

Viewing these two claims against the law of standing and ripeness, the Court finds that preferential right claim may proceed, but that the franchise fee claim must be dismissed.

(a) The Right to Preferential Renewal

At the outset, it is clear that the plaintiffs' claim of a contractual right to preferential renewal falls squarely within the rule that a loss of opportunity to compete is an injury in fact. The plaintiffs allege that they have a legal right, vested in them through contract, to renew their contract if they can match the next best bid. By preventing them from participating in the bidding process in this fashion, the defendants undeniably infringe upon interests which the plaintiffs claim are "legally protected." Lujan, 504 U.S. at 560. An injury in fact thus exists.

From a prudential standpoint, the Court finds little reason to depart from its finding of constitutional standing. As national park concessioners, the plaintiffs are almost per se within the "zone of interests to be protected" by the enactment of a statute titled the "National Parks Omnibus Management Act of 1998." Association of Data Processing Serv. Orgs., 397 U.S. at 153. The plaintiffs are all central players in the concession system which Congress attempted to reform.

With regard to ripeness, the Court finds it appropriate to retain jurisdiction at this time. First, the preferential right of renewal issue is largely legal; it hinges on statutory and regulatory interpretation, and does not implicate a complicated array of facts. Second, the issue would not "benefit from a more concrete setting," as a fully executed contract would present the Court with substantially the same issues currently under dispute. Warren Corp., 159 F.3d at 621. Moreover, the NPS's policy on this issue is clearly "crystallized" in its final form. Eagle-Picher Indus. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985).

The NPS has reviewed and re-reviewed the issue, and promulgated a lengthy regulation and explanation. Furthermore, the NPS has endorsed this view by issuing prospectuses which are consistent with the details enunciated in the regulations. See Brief for Plaintiffs, Feb. 28, 2001, at 19.

With regard to the plaintiffs' hardship should judicial review be delayed, the Court need not find any hardship because it has little doubt that the issues are currently fit for judicial review. See Consolidated Rail Corp, 896 F.2d at 577.

(b) Hamilton Stores' Franchise Fee Claim

The Court finds that Hamilton Stores does not have standing to bring its franchise fee claim, and also that the claim is not currently ripe for review.

First, it is entirely conjectural whether the minimum franchise fee of 3.5 percent will provide Hamilton Stores with a "reasonable opportunity for net profit." 16 U.S.C. § 5956(a). Not only is it pure conjecture whether Hamilton will obtain the new concession contract, but even if it did, it is even more conjectural whether the franchise fee, together with the future economic environment, will deny it the opportunity for a profit. Thus, Hamilton Stores does not have standing to bring this claim.

Likewise, Hamilton Stores' franchise fee claim is also not ripe. Whether a 3.5 percent franchise fee will permit Hamilton Stores (who may or may not be the new concessioner) a reasonable opportunity for net profit is not a "purely legal" issue; to the contrary, it is an issue highly contingent on facts which are currently unknown and unknowable. Warren Corp., 159 F.3d at 621. Moreover, the resolution of this issue would substantially benefit if it were posed in a "more concrete setting." Id. It is wholly beyond the judiciary's means to hypothesize on the economic health of national park concessions at some distant time. The Court is not blind to the fact that a 3.5 percent franchise fee may indeed be violative of section 5952(a). If Hamilton obtains the next Yellowstone concession contract, and thereafter determines there is not a reasonable opportunity for profit at a franchise fee of 3.5 percent, Hamilton may bring a claim at that time. Until then, this Court must decline to review the issue.

Hamilton Stores argues at great length that the minimum franchise fee is flawed because the capital asset valuation used to set the fee was itself flawed. Even if the Court were to accept this argument (which it emphatically declines to do), Hamilton has still failed to show that this flawed analysis causes it a current or imminent injury. The injury which Hamilton Stores alleges-the lost opportunity to earn a profit-is contingent upon several independent factors which may or may not occur. The occurrence (or non-occurrence) of any one of these factors could easily make the "resolution of the dispute . . . unnecessary." Edison Elec. Institute v. U.S.E.P.A., 996 F.2d at 326; State Farm Mut. Auto. Ins. Co., 802 F.2d at 479. Hamilton Stores' franchise fee claim must thus be dismissed for lack of standing and ripeness.

C. Conclusion

For the foregoing reasons, the Court finds that the plaintiffs may continue with their preferential renewal right claim. However, Hamilton Stores may not continue with its franchise fee claim. *fn9 The Court therefore turns to the cross motions for summary judgment.

II. THE CROSS MOTIONS FOR SUMMARY JUDGMENT

A. Standard of Review

Federal Rule of Civil Procedure 56(c) provides that a district court shall grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is (1) no genuine issue as to any material fact and that (2) the moving party is entitled to judgment as a matter of law." See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To survive a motion for summary judgment, the non-movant must make a "sufficient showing to establish the existence of an element essential to that party's case." Celotex, 477 U.S. at 322. A "sufficient showing" exists when the evidence is such that a reasonable jury could return a verdict for the non-movant. Anderson, 477 U.S. at 248.

B. Applicable Law

This case challenges the regulations and official policy of a federal agency. In considering such matters, Article III courts utilize the rule of deference promulgated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Chevron requires a court to analyze agency action under a two-step analysis. "First, always, is the question of whether Congress has directly spoken to the issue. If the intent of Congress is clear, then that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 841. If, however, the statute is "silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's [final action] is based on a permissible construction of the statute." Id. A construction is permissible if it is reasonable. The agency's construction, however, need not be the only or most reasonable interpretation, see id. at 843 n.11, it must merely be "rational and consistent with the statute." NLRB v. United Food & Commercial Workers Union, 484 U.S. 112, 123 (1987). See also General Elec. Co. v. United States Envtl. Protection Agency, 53 F.3d 1324, 1327 (D.C. Cir. 1995).

C. The Contractual Right of Preferential Renewal

1. Background

Almost 85 years ago, the National Park Service was created to oversee our national parks and to "conserve the scenery and the natural and historic objects and the wild life therein and . . . provide for the enjoyment of the same." 16 U.S.C. § 1. Throughout this entire period, the NPS has relied on private concessioners for the provision of "lodging, food, merchandising, transportation, outfitting and guiding, and similar activities." 64 Fed. Reg. 20630 (Apr. 17, 2000).

During the 1960s, Congress and the NPS determined that certain incentives were necessary to maintain the continuity of operation in the national parks. With this in mind, Congress enacted the Concessions Policy Act of 1965. Section 20d of that Act stated:

The Secretary shall encourage the continuity of operation and facilities and services by giving preference in the renewal of contracts or permits and in the negotiations of new contracts of permits to the concessioners who have performed their obligations under prior contracts or permits to the satisfaction of the Secretary. 16 U.S.C. § 20d.

After this statute was enacted, the plaintiffs in the instant case all entered into long-term concession contracts with the NPS. None of the contracts contained any provision granting the plaintiffs a preference in the renewal of their contracts.

In 1989, the Department of the Interior began a review of National Park concessions, with the goal of finding ways to enhance concession management. Three years later, in 1992, the Department issued a report making various findings and recommendations for improvement. Among the findings was the observation that the right of preference in renewal enjoyed by incumbent concessioners significantly impeded the competition for concession contracts. See 57 Fed. Reg. 40508, 40508 (Sept. 3, 1992).

In 1998, after the NPS tried to address this issue with regulations, Congress enacted the National Parks Omnibus Management Act of 1998 (the "1998 Act"). 16 U.S.C. §§ 5951-5966. Section 5952 of the Act orders that the

Secretary shall not grant a concessioner a preferential right to renew a concessions contract, or any other form of a preference to a concessions contract. *fn10 16 U.S.C. § 5952(7)(A). Although the 1998 Act expressly repealed the 1965 Act, Section 415 of the 1998 Act stated that: the repeal of [the 1965 Act] shall not affect the validity of any concessions contract or permit entered into under [the 1965 Act] but the provisions of this [Act] shall apply to any such contract or permit except to the extent such provisions are inconsistent with the terms and conditions of any such contract or permit. Pub. L. No. 105-391, Title IV, § 415(a), Nov. 13, 1998.

After the passage of the 1998 Act, the NPS reformed certain concession contract regulations to make them, in its opinion, consistent with the new statute. On the issue of whether contracts entered into under the 1965 Act contain a right to a preference in renewal, the NPS stated:

In circumstances where a 1965 Act concession contract does not make express reference to a preference in renewal, it is the final administrative decision of the NPS . . . that their repeal of the 1965 Act's preference in renewal by the 1998 Act is applicable to holders of 1965 Act concession contracts. 65 Fed. Reg. 20630, 20664 (Apr. 17, 2000); see also 36 C.F.R. § 51.102 (codifying the presumption against a preferential renewal right in a 1965 Act contract, unless express language indicates otherwise).

It is this agency policy which the plaintiffs urge the Court to hold contrary to law. The Court now undertakes that evaluation.

2. Analysis

The lawfulness of the defendants' regulations turns on whether the plaintiffs each have a contractual right to preferential renewal. If the plaintiffs do have such a right, then the NPS's regulations are unlawful because they unilaterally delete a valid contract term. If the plaintiffs do not have such a right, then the NPS's regulations are lawful in that they have not diminished any of the plaintiffs' contractual rights and are an otherwise reasonable interpretation of the 1998 Act. In making this determination, the Court's review is necessarily limited to the administrative record. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971).

The Court begins by noting the obvious, which is that no contract between the NPS and the plaintiffs contains an express term granting the concessioners a preferential right to renewal. Thus, the plaintiffs can only be found to have this right if one of three circumstances exists: (1) the right derives from statute, (2) the right derives from an implied contract, or (3) the right derives from an implied term in the current concession contracts. The Court finds that none of these situations exist, and therefore that the plaintiffs do not have a right to preferential renewal.

(a) Contract Rights Established by Statute

"The principal function of a legislature is not to make contracts, but to make laws." National R.R. Passenger Corp. v. Atchison Topeka & Santa Fe Ry., 470 U.S. 451, 466 (1985). Thus, there exists a strong "presumption . . . that a law is not intended to create private contractual or vested rights." Id.

Of course, a legislature might, if it wishes, bestow upon a party a contractual right. But, given the presumption to the contrary, a legislature, must do so in "unmistakable terms." Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41, 52 (1986) (quoting Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 138 (1982)).

The Court need not review the law on this issue further to conclude that the 1965 Act did not vest in the plaintiffs a contractual right to preferential renewal. Section 20d of the 1965 Act stated:

The Secretary shall encourage the continuity of operation and facilities and services by giving preference in the renewal of contracts or permits and in the negotiations of new contracts of permits to the concessioners who have performed their obligations under prior contracts or permits to the satisfaction of the Secretary. 16 U.S.C. § 20d.

This provision is egregiously short of conveying in "unmistakable terms" a contractual right to the plaintiffs. First, the provision is wholly bereft of even the most standard contractual language. For instance, there is no clause which notes that the renewal preference is "in consideration of" any act of the concessioners.

Second, the terms of the Act actually belie a contractual interpretation. By its terms, the Act orders the Secretary of Interior to "giv[e]" renewal preferences to the concessioners; it does not order the Secretary to contract with the concessioners for the renewal right. This observation is important, as elsewhere in the Act, the Secretary is explicitly authorized to contract for a preferential right of renewal in certain limited circumstances. See 16 U.S.C. § 20c. This suggests that, had Congress wished to create contractual renewal rights in concessioners like the plaintiffs, it would have provided such discretion to the Secretary. See National Rifle Ass'n v. Reno, 216 F.3d 122, 130-31 (D.C. Cir. 2000) (where Congress includes particular language in one section of a statute, ...


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