United States District Court, District of Columbia
For JACK'S CANOES & KAYAKS, LLC, Plaintiff: Charles Henry Camp, Sr., LAW OFFICES OF CHARLES H. CAMP, P.C., Washington, DC.
For NATIONAL PARK SERVICE, NATIONAL PARK FOUNDATION, Defendants: Wynne Patrick Kelly, LEAD ATTORNEY, U.S. Attorney's Office, Civil Division, Washington, DC.
For DISTRICT OF COLUMBIA, Defendant: Matthew Robert Blecher, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Public Interest Division, Washington, DC.
COLLEEN KOLLAR-KOTELLY, United States District Judge.
Plaintiff Jack's Canoes & Kayaks, LLC (" Plaintiff" ) filed suit against the National Park Service (" NPS" ), the National Park Foundation (" NPF" ), and the District of Columbia (" District" ) relating to purportedly illegal attempts by the NPS and NPF (together the " Park Defendants" ) to terminate a lease under which Plaintiff claims to have been a tenant since April 2007. See Compl., ECF No. . Presently before the Court is the Park Defendants'  Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted. Upon consideration of the parties' submissions, the relevant authorities, and the record as a whole, the Court shall GRANT-IN-PART and DENY-IN-PART the Park Defendants' motion to dismiss. 
Specifically, the Court agrees that Plaintiff lacks constitutional standing to request a declaratory judgment that jurisdiction for administration and maintenance of the Georgetown Waterfront Park, including the lot in which Plaintiff asserts a leasehold interest, was never effectively transferred
by the District to NPS (or that if it was, such jurisdiction has since reverted to the District). Accordingly, the Court shall GRANT the Park Defendants' motion to dismiss insofar as it requests dismissal of Plaintiff's request for a declaratory judgment invalidating this transfer of jurisdiction.
Because the Court finds based on the present record that Plaintiff possesses standing to pursue the remainder of its claims against the Park Defendants, the Court shall DENY the Park Defendants' motion to dismiss those claims on standing grounds.
The Park Defendants' motion is also DENIED insofar as it seeks dismissal of Plaintiff's tort claims against NPF, as the Court finds that NPF, a 501(c)(3) non-governmental organization, is not entitled to sovereign immunity for those claims. Although the close relationship between NPS and NPF warrants like analysis of Plaintiff's claims against them for many purposes, the Park Defendants have improperly amalgamated the two entities for purposes of their sovereign immunity analysis.
Finally, in the course of considering the remainder of the arguments asserted in the Park Defendants' motion, the Court has found that the parties' pleadings are not in direct conversation in certain key respects. The Court has taken pains to determine the applicability of the Park Defendants' arguments to Plaintiff's Complaint but ultimately cannot do so due to Plaintiff's failure, both in its Complaint and briefing, to adequately articulate the legal and factual grounds for its claims. For this reason, the Court shall require Plaintiff to file a notice with the Court which shall clarify the precise contours of the claims Plaintiff intends to pursue in this action, in accordance with the specific instructions set forth in this Memorandum Opinion and accompanying Order. Accordingly, the Court shall DENY-WITHOUT-PREJUDICE the remainder of the Park Defendants' motion to dismiss, with leave to re-file after tailoring the motion to speak to the claims and arguments that Plaintiff actually intends to pursue in this action.
The Court shall restate the factual and procedural background of this case as set forth in its  March 28, 2013 Memorandum Opinion, to the extent here relevant. Unless otherwise indicated, all facts set forth below are taken from Plaintiff's Complaint and are presumed true for purposes of the Court's consideration of the instant motion.
Since April 2007, when Plaintiff was incorporated as a limited liability corporation, Plaintiff has operated a boathouse business offering canoe and kayak rentals, tours, storage, and other related services at 3500 K St. N.W., Washington, D.C. Compl. ¶ ¶ 9, 17, 30. Plaintiff's operations occur on two adjacent parcels of land on the Georgetown Waterfront: Lot 806 (which Plaintiff owns) and Lot 805 (which is owned by the District but managed by NPS pursuant to a transfer of administrative jurisdiction over several acres of land that constitute the Georgetown Waterfront Park). See Compl. ¶ ¶ 9, 12, 23-28.
By way of background, Plaintiff succeeded an individual by the name of Frank Baxter in the ownership and operation of the business that was started by Frank Baxter's mother and father, John and Norma Baxter, in 1945. Id. ¶ 19. In 1973, as part of a compromise with the District, which wanted to take Lot 805 for the construction of Whitehurst Freeway, the District agreed to buy Lot 805 from John and Norma Baxter and to lease it back to
them so that they could continue to own and operate the boathouse. Id. ¶ 20. On August 28, 1973, John and Norma Baxter deeded Lot 805 in fee simple to the District for $244,160.00. Id. ¶ 21. On October 1, 1973, the District and the Baxters entered into a lease with respect to Lot 805 (the " Lease" ). Id. & Pl.'s Mem., Ex. 4 (Lease).
The Lease, the " express purpose" of which is described as " permitting a temporary lease of the hereinafter described premises" by the Baxters for boat rentals and related activities, states in pertinent part: " [T]he District does hereby grant unto the Lessee, use and occupancy of [Lot 805], commencing October 1, 1973 and continuing thereafter from month to month for sum of $275.00 ($275.00) per month[.]" Pl.'s Mem., Ex. 4 (Lease), at 1. Beginning April 1, 1982, the monthly payment amount increased to $356.00 pursuant to a letter amendment to the Lease sent by the District and countersigned by John and Norma Baxter. Id. at 5.
On September 10, 1985, the District of Columbia Council passed Resolution 6-284 (the " 1985 Resolution" ), which was intended to initiate a transfer of administrative jurisdiction over a number of land parcels on the Georgetown Waterfront, including Lot 805, to the NPS for the purpose of establishing and maintaining the Georgetown Waterfront Park. Compl. ¶ 24 & Pl.'s Mem., Ex. 7 (D.C. Council Resolution 6-284 (Sept. 10, 1985)). The 1985 Resolution states, in relevant part, that " Jurisdiction over ... Lot ... 805 ... shall be transferred to the National Park Service 5 years after the effective date of this resolution unless ... suitable sites and facilities have not been obtained for the relocation of those public works facilities now located on the parcels of land that are part of the Georgetown Waterfront Park." Pl.'s Mem., Ex. 7 (D.C. Council Resolution 6-284 (Sept. 10, 1985)), at 2. The 1985 Resolution further states that it is " contingent upon an exchange of letters" between the District of Columbia Mayor and the Regional Director of NPS, which were to memorialize the agreement on several matters -- including, inter alia, that the transferred land be used only for public park and related purposes; that the District assign its existing leases on the land to the NPS and the NPS dedicate all revenues from those leases to park development; and that NPS assume responsibility to repair and maintain all wharves, piers, bulkheads, and similar structures located on the transferred land. Id. at 3-4. The letters were also to include " conditions, including a reversion of jurisdiction to the District ... which fully protect the District ... in the event ... of ...an [a]mendment or cancellation of [a] January 7, 1985 deed [of easements] between Washington Harbour Associates [a District of Columbia partnership], Georgetown Potomac Company, Mount Clare Properties (D.C.) Inc., and the United States of America[.]" Id. at 3.
A letter agreement from the NPS dated May 18, 1987 and countersigned by the District of Columbia Mayor on July 2, 1987 (the " 1987 Letter" ) set forth the parties' agreements to the conditions of transfer stated in the 1985 Resolution. See Pl.'s Mem. Ex. 8 (Letter from Manus J. Fish, NPS Regional Director to Hon. Marion S. Barry, Mayor of the District of Columbia (May 18, 1987)). According to both the District and the Park Defendants, the actual transfer of administrative jurisdiction was properly executed in 1999. See Park Defs' Opp'n at 3-4. For reasons described more fully infra Part III.A.2, Plaintiff contends that the transfer process was " procedurally flawed." See Pl.'s Mem. at 6.
Although both the 1985 Resolution and the 1987 Letter indicate an agreement by
the District to assign the Lease to NPS at an undetermined future date, no such direct assignment ever occurred. Instead, on March 30, 2000, the District executed an assignment agreement (" Assignment Agreement" ) assigning all of the existing District leases on the land to NPF . See Pl.'s Mem., Ex. 19 (Assignment of Leases Agreement (March 30, 2000)). NPF is a 501(c)(3) non-profit organization that was chartered by Congress in 1967, for the purpose of accepting private gifts " for the benefit of, or in connection with, the National Park Service, its activities, or its services." An Act to Establish the National Park Foundation, Pub. L. No. 90-209 (1967). The Assignment Agreement states, in pertinent part:
WHEREAS, one of the conditions set forth in the  Resolution was the assignment by the District to NPS of existing District leases at Georgetown Park, and a commitment by NPS to use the lease revenues for park development and maintenance at the Georgetown Park; and ... because NPS has determined that revenues received by NPS from the Leases could not be dedicated for development and maintenance of Georgetown Park, NPS requested that the District assign the Leases to Assignee ... The District does hereby assign the Leases to Assignee. Assignee does hereby accept the Leases and does unconditionally assume all of the responsibilities, obligations, and liabilities of Assignor under the Lease, including any and all outstanding obligations and liabilities of Assignor.
The Assignment Agreement cites as authority the District of Columbia Council Act No. 13-252, titled the " Transfer of Jurisdiction over Georgetown Waterfront Park for Public Park and Recreational Purposes, S.O. 84-230, Emergency Act of 1999," effective January 27, 2000, which the Agreement describes as having amended the Resolution to authorize the District to assign the leases to NPF. Id. Earlier correspondence between NPS and NPF indicates that NPS directed NPF to accept the District's assignment of the Lease and that NPS also " accept[ed] appointment as [NPF's] agent for purposes of fulfilling all obligations, and pursuing all rights and remedies to the terms and provisions of the Lease, in accordance with [its] terms[.]" See Park Defs' Reply, Ex. 1 (Letter from Terry R. Carlstrom, Regional Director, NPS to James D. Maddy, NPF President (Sept. 24, 1999)), ECF No. [26-1].
In 2007, upon Plaintiff's incorporation, Frank Baxter -- successor in interest to John and Norma Baxter and an owner of the business until his death in 2009 -- transferred all of his right, title and interest in the corporation, including the lease over Lot 805, to Plaintiff. See Pl.'s Mem. at 4 & Ex. 1 (Operating Agreement of Jack's Canoes & Kayaks, LLC). Mr. Baxter also deeded Lot 806 to Plaintiff on April 15, 2009, prior to his death later that year. Compl. ¶ 22. According to Plaintiff, since its incorporation in 2007, Plaintiff has been paying rent to NPF on time and on a monthly basis (in the amount of $356.00 per month pursuant to the Lease as amended by the 1982 letter agreement between the District and the Baxters). Compl ¶ 30. See also Park Defs' Mem. at 3. While NPF regularly cashed Plaintiff's rent checks between 2007 and August 2012, NPF stopped cashing Plaintiff's rent checks from August 2012 through January 2013, the month Plaintiff filed its Complaint. Id. ¶ 31.
According to the Park Defendants, sometime prior to August 2012, NPS had determined that, in keeping with its Congressional mandate, the non-motorized
boat service provided at the site operated by Plaintiff needed to be performed under a concessions contract instead of a lease. See Park Defs' Mem. at 2 (explaining that Congress has mandated, absent specific exceptions not applicable to this case, that " the Secretary shall utilize concessions contracts to authorize a person, corporation, or other entity to provide accommodations, facilities, and services to visitors to units of the National Park System" ) (citing 16 U.S.C. § 5952). According to Plaintiff, in August 2012, NPS sent Plaintiff a draft concessions contract for continued operation of its boathouse business, Compl. ¶ 32, but ceased communications with Plaintiff on the subject of a concessions contract in October 2012, and no agreement was reached, id. ¶ 33.
By letter dated December 18, 2012, the Regional Director of NPS provided Plaintiff " notice ... to terminate its occupancy of the leased premises. . . . [and to] vacate the property on or before 11:59 p.m. on January 31, 2013, and remove all personal property from the premises." Compl. ¶ 34 & Pl.'s Mem., Ex. 11 (Letter from Stephen E. Whitesell, NPS Regional Director to Paul Simkin, Owner of Jack's Canoes and Kayaks, LLC (Dec. 18, 2012)). An NPF representative signed the letter in concurrence, in its capacity as the successor lessor under the Lease. See Pl.'s Mem., Ex. 11 (Letter from Stephen E. Whitesell, NPS Regional Director to Paul Simkin, Owner of Jack's Canoes and Kayaks, LLC (Dec. 18, 2012)). One week later, in a December 24, 2012 email, the NPS Director notified Plaintiff that, due to public concern about the future of the boathouse, NPS had decided to withhold further action on the termination of the Lease until NPS could conduct a more thorough review and determine the best course of action. Compl. ¶ 35.
On January 18, 2013, NPS issued a letter to Plaintiff, withdrawing its December 18, 2012 letter and informing Plaintiff that the NPS intended to terminate the Lease upon execution of a concessions contract by the end of February 2013. Id. ¶ 36 & Pl.'s Mem., Ex. 13 (Letter from Stephen E. Whitesell, NPS Regional Director to Paul Simkin, Owner of Jack's Canoes and Kayaks, LLC (Jan. 18, 2013)). The letter again indicated NPF's concurrence with this decision. Pl.'s Mem., Ex. 13 (Letter from Stephen E. Whitesell, NPS Regional Director to Paul Simkin, Owner of Jack's Canoes and Kayaks, LLC (Jan. 18, 2013)). The letter further notified Plaintiff that on that same date, January 18, 2013, NPS was releasing a Request for Qualifications (RFQ) for non-motorized boat rental and storage services at or near the location of Plaintiff's present operation. Id. The letter indicated that NPS would evaluate all responsive proposals, including Plaintiff's should it wish to submit one, in a fair and consistent fashion. Id. The deadline to respond to the RFQ was February 6, 2013. Id. As the parties later represented to the Court during a February 19, 2013 on-the-record telephone conference, Plaintiff chose not to submit a response to the RFQ.
On January 31, 2013 -- thirteen days after the Park Defendants issued the lease termination letter -- Plaintiff filed its Complaint in this matter. See Compl. The Complaint asserts the following five counts:
(i) Declaratory Judgment (against the Park Defendants and the District ).
Plaintiff seeks a series of declarations under this count -- specifically that:
(a) Plaintiff is a lessee under the Lease;
(b) The Lease was never effectively assigned to NPF, and NPS is not a party to the Lease;
(c) Jurisdiction for administration and maintenance over Lot 805 was never effectively transferred by the District of Columbia to NPS, or, if it was, such jurisdiction has reverted to the District of Columbia;
(d) The NPS and NPF decision to terminate the Lease and evict Plaintiff in order for NPS to grant a concessions contract are not permitted by any District of Columbia assignment, resolution, act, letter, or authority; and
(e) Neither the NPF nor the NPS have the power or authority to terminate the Lease.
(ii) Injunctive Relief (against the Park Defendants)
Plaintiff requests that the Court enjoin the Park Defendants from taking any further actions that interfere with the continuing operation of the boathouse by Plaintiff, including seeking to terminate the Lease or evict Plaintiff without a Court Order following this Court's determination as to whether NPF and/or NPS have the power and jurisdiction to do so;
(iii) Intentional Interference with Business Relations (against NPF)
(iv) Conspiracy to Carry Out an Unlawful Eviction and Interfere with Plaintiff's Business ...