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Silver State Land, LLC v. Schneider

United States District Court, D. Columbia

November 19, 2015

JANICE M. SCHNEIDER, in her official capacity as Assistant Secretary of Land and Minerals Management, U.S. Department of the Interior, et al., Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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          For SILVER STATE LAND LLC, Plaintiff: W. Hartmann Young, LEAD ATTORNEY, Paul Burton Smyth, John F. Henault, Jr., PERKINS COIE LLP, Washington, DC.

         For TOMMY P. BEAUDREAU, in his official capacity as Acting Assistant Secretary, Land and Minerals Management, NEIL KORNZE, in his official capacity as Principal Deputy Director, Defendants: Alison D. Garner, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

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         BERYL A. HOWELL, United States District Judge.

         After the plaintiff, Silver State Land, LLC (" SSL" or " plaintiff" ), invested millions of dollars in developing plans for, and successfully bidding and paying the purchase price to obtain the patent on, approximately 480 acres of federal land located in the City of Henderson, Nevada, LLC, the former Acting Assistant Secretary of Land and Minerals Management (" LMM" ) in the U.S. Department of the Interior (" DOI" ), in accordance with the recommendation of the former Principal Deputy Director of DOI's Bureau of Land Management (" BLM" ) (collectively " the agency" ), decided to cancel the patent issuance process, withhold the patent and terminate the land sale. The plaintiff filed this lawsuit to challenge this agency action, claiming that " the decision to withdraw the sale was contrary to statutory limitations regarding the ability to withdraw the sale, and was arbitrary and capricious," in violation of the Administrative Procedure Act (" APA" ), 5 U.S.C. § 706(1) and (2). Pl.'s Mot. Summ. J. (" Pl.'s Mot." ), at 1, ECF No. 32; Pl.'s Mem. Supp. Mot. Summ. J. (" Pl.'s Mem." ), at 9, ECF No. 32. Pending before the Court are the plaintiff's motion for summary judgment to set aside the LMM determination and order immediate delivery of the land patent to the plaintiff, Pl.'s Mot. at 1, and the agency's cross-motion for summary judgment, Defs.' Cross-Mot. Summ. J. (Defs.' Mot." ), at 1, ECF No. 33.[1] For the reasons set forth below, the agency's motion is granted and the plaintiff's motion is denied.

         I. BACKGROUND

         The factual background of the instant dispute was generally summarized in the Court's prior decision denying the plaintiff's motion to supplement the administrative record, grant extra-record review, or take judicial notice of an Order issued by a Nevada state court, see Silver State Land, LLC v. Beaudreau, 59 F.Supp.3d 158, 161-63 (D.D.C. 2014), and will be reviewed with additional pertinent detail again here. The genesis of this public land dispute was an ambitious agreement, in early September 2011, between the City of Henderson, Nevada (" Henderson" or " the City" ) and the Las Vegas National Sports Center LLC (" LVNSC" ), for the purchase and development of an approximately 480-acre parcel of public land (the " Property" ) under the administration of BLM. Admin. Record (" AR" ) 1590, 1592, ECF No. 25.[2] This Property had been identified " within the disposal boundary as set forth in the [Southern Nevada Public Land Management Act of 1998] SNPLMA," AR 1598, which authorized a land disposal program for Southern Nevada, AR 1634. Under the SNPLMA process, BLM worked with local governments and the State Regional Planning Coalition, " to jointly identify land for public purposes . . . [and] for privatization that supports the achievement of local and regional land-use plans," while ensuring fair market return for the American public from all SNPLMA land sales" and " supporting well-planned communities and commercial development in the Las Vegas Valley." AR 1582.

         The agreement between the City and LVNSC, titled " Master Project Agreement" (" MPA" ), provided that LVNSC, or its affiliates, would develop, construct and operate " four state-of-the-art sporting event venues," along with mixed-use retail, residential and entertainment facilities, on the Property. AR 1589-1601.[3] While the plaintiff is not mentioned in the MPA, the term " affiliates" is defined as those entities " directly or indirectly controlling, controlled by, or under common control with"

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LVNSC, which the agreement indicated was wholly owned by " LVNSC (Holding) LLC." AR 1591, 1609 (MPA § 1.1 and Ex. " C" ). LVNSC had the right to assign to its affiliates all or a portion of its rights, interests, responsibilities and obligations under the agreement, upon notice of the assignment to the City. AR 1592, 1603 (MPA § § 1.2, 7.9).

         The MPA provided clear and obvious benefits to the City. Specifically, LVNSC agreed to develop and construct the project, in consultation with the City, which would, with some limitation on use, " jointly own all of the Project architectural drawings, renderings, designs, plans and specifications." AR 1592 (MPA § 1.3). The City also had the right to participate in designing the project and veto changes to any element of the project that would result in elimination of any of the planned venues or noncompliance with certain agreed upon standards. AR 1593 (MPA § 1.7(b)). In addition, upon completion of the construction of each planned venue, LVNSC was required to " transfer ownership of the applicable venue, together with the portion of the Property upon which such Venue is situated, . . . to the City," AR 1598-99 (MPA § 3.4), which would own the venue " for public purposes," AR 1592 (MPA § 1.3).[4] The MPA required the City to " lease back" the transferred venue to LVNSC. AR 1599 (MPA § 3.4). Given the anticipated economic benefits to be derived from the project with LVNSC, the City agreed to use its bonding and taxing authority to pay for a portion of the costs of developing the Property, AR 1590, 1596 (MPA Recitals F & G, § 2.2), and to nominate the Property for disposition through direct sale by BLM to LVNSC, AR 1590, 1598 (MPA Recital C, § § 3.1, 3.3). The MPA was " not intended in any respect to be a development agreement," AR 1605 (MPA § 7.19), but the parties agreed to negotiate " a form of development agreement," subject to approval by the City, to be " entered into by the City and LVNSC following BLM Closing." AR 1599 (MPA § 4.2).

         In accordance with the MPA and the SNPLMA's " joint selection process," the City nominated the Property for sale to LVNSC under BLM's " Direct Sale Process as set forth in 43 CFR 2711.3-3." AR 15 (Letter, dated Sept. 7, 2011, from City's Mayor to BLM). The City explained the reasons for its request for a noncompetitive direct sale as follows: " a competitive sale is not appropriate and the public interest would be best served by a direct sale" because the property subject to the sale " is an integral part of a project of public importance and speculative bidding would jeopardize a timely completion and economic viability of the project." Id. The City stressed that the project would (1) result in the creation of " approximately 10,000 immediate construction jobs on site, and permanent service and management jobs that will provide employment for an estimated 4,000 employees; " (2) " provide 'meaningful economic diversification'; " (3) advance " Henderson's planning objectives for the area; " and (4) " stabilize and enhance land values and promote future development opportunities on other private and public land in the vicinity." Id. at 15-16. In sum, the City urged the direct sale process to " ensure prompt fair market value and [] support vital public objectives consistent with Henderson's regional land-use plan." AR 17.

         After " careful review" of the City's request and the LVNSC proposal, BLM concluded

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that a noncompetitive direct sale of the Property to LVNSC was not appropriate since the proposal " does not rise to the level of a 'public project'" as contemplated by the direct sale regulations. AR 19 (Letter, dated Oct. 4, 2011, from BLM to City's Mayor). Nonetheless, BLM suggested " other sale methods," including " a modified competitive sale," as provided in 43 CFR 2711.3-2(a). This alternative sale process could be used when necessary " to assure equitable distribution of land among purchasers or to recognize equitable considerations or public policies," and " could incorporate flexibility through appropriate procedures . . . ." Id. at 20. Notably, " a statement indicating the purpose or objective of the bidding procedure would be specified in the notice of realty action." Id. The City agreed to this modified competitive sale process, and designation of LVNSC as the preferential bidder, in order to " support vital public objectives while maintaining consistency with Henderson's regional land-use plan." AR 1524 (Letter, dated Oct. 10, 2011, from City's Manager to BLM). The City subsequently advised BLM of a " minor change," requesting that the plaintiff, " a controlled affiliate of the LVNSC," be the designated bidder for the Property. AR 1209-11 (Letter, dated Jan. 12, 2012, from City's Manager to BLM). Both LVNSC and the plaintiff are wholly owned by Las Vegas National Sports Center (Holding) LLC. AR 1211.

         On April 4, 2012, BLM published in the Federal Register a Notice of Realty Action (" NORA" ) for a modified competitive, sealed-bid sale process in which the plaintiff, as the designated bidder, would be offered the right to meet the highest bid for the Property. AR 10-13 (77 Fed.Reg. 20413-16). The Notice explained that the plaintiff was the designated bidder because it had " developed an agreement" with the City " for long-term public benefits to the City and local residents," namely, " to develop the property for public recreation and commercial uses approved by the City." AR 11. The plaintiff's failure or refusal to meet the highest bid " shall constitute a waiver of the modified competitive bidding procedure for this proposed sale," id., and the highest " bidder will be declared the successful bidder in accordance with the regulations at 43 CFR 2711.3-2(c)," id. If no acceptable bids were received, " the parcel may remain available for sale at a future date in accordance with a competitive sale procedures without further notice." Id. A successful bidder accrued no contractual or other rights against the United States " until BLM officially accepts the offer to purchase and the full bid price is submitted by the 180th day following the sale." AR 12. Notably, notwithstanding the potential accrual of rights by the successful bidder, the NORA cautioned that, under 43 CFR 2711.3-1(f), " BLM may accept or reject any or all offers to purchase, or withdraw any parcel of land . . . from sale, if, in the opinion of a BLM authorized officer, consummation of the sale would be inconsistent with any law, or for other reasons as may be provided by applicable law or regulations." AR 13.

         On June 4, 2012, the plaintiff submitted a bid to purchase the land for $10,560,000, which was the appraised value previously determined by BLM under an appraisal prepared by a third party and reviewed and approved by DOI's Office of Valuation Services. AR 851.[5] On June 12, 2012, BLM confirmed the plaintiff as the successful

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bidder, accepted the bid, acknowledged the plaintiff's payment on June 4, 2011 of the bid guarantee and twenty percent deposit, and requested final payment of $8,428,000 by December 3, 2012. AR 847.

         During the Summer and Fall of 2012, the record contains emails indicating that the plaintiff was " having some difficulty coming up with financial backing on this project." AR 764 (Internal BLM email, dated Sept. 27, 2012). Although plaintiff's representative communicated to BLM in an email that the final balance due would be deposited by November 20, 2012, AR 744 (Email, dated Nov. 15, 2012, from Mike Ford to BLM), the payment was not received until November 28, 2012, when the plaintiff deposited into an escrow the amount of $8,428,000. AR 599, 617, 694, 692. According to the plaintiff, this payment triggered BLM's obligation to issue a patent giving the plaintiff the title to the Property within 30 days. Compl. ¶ ¶ 13-14.

         In the evening of the same day that the plaintiff paid the balance owed on the Property into escrow, the plaintiff's affiliated company, LVNSC, terminated the MPA with the City. AR 650-51 (BLM Internal Working Document, dated November 30, 2012, noting that " hours after tendering the balance of the purchase price for the parcel, [plaintiff] provided written notice to the City of Henderson that the project development was no longer viable and stated they were terminating their agreement with the City." ). According to LVNSC's hand-delivered letter to the City, LVNSC exercised the authority under MPA § 3.2 to terminate the agreement " [b]ecause the overall project is not viable as contemplated by the MPA." AR 29 (Letter, dated Nov. 28, 2012, from LVNSC to City). Notwithstanding the termination, LVNSC indicated it was " fully committed to achieving development of the arena complex and accompanying development in a way that will greatly enhance the City and surrounding areas." Id.

         The City's response to LVNSC's termination of the MPA was swift. Early the next morning, on November 29, 2012, in an email to BLM, the City's attorney requested that BLM " immediately withdraw" the Property nominated for plaintiff pursuant to 43 CFR 2711.3-1, because at a meeting the previous evening, the plaintiff " informed the City that they were backing out of their agreement with the City that would obligate them to build an arena on the property, which was the state[d] [sic] purpose of the Notice of Realty Action." AR 690 (Email, dated Nov. 29, 2012, from the City to BLM). Believing that the plaintiff " fraudulently induced the City and the federal government to sell [the] [sic] land with the intention of not meeting the stated obligations of the nominated buyer for the modified direct sale," the City requested that " BLM does not grant the patent for the 480 acres to [plaintiff]." Id.

         The City's attorney followed-up his email with a letter to BLM, reiterating the request " that BLM refuse to accept the funds deposited by [Christopher] Milam's entities into escrow and that BLM refrain from further processing or issuing a land patent conveying the Property to SSL." AR 28 (Letter, dated Nov. 29, 2012, from the City to BLM).[6] The City further requested " that BLM immediately issue a letter to SSL and the City confirming that it will not proceed with processing and the issuance of the land patents to SSL until such time as the foregoing issues are resolved." Id. As support for these requests, the City pointed out the discrepancy in

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LVNSC's letter citing lack of viability for the project as the reason for the termination, at the same time stating an intention to proceed with the project, " which clearly demonstrates that the project is viable . . . ." AR 27. More significantly, the City noted that the " sale of the Property was expressly premised upon the existence of the Agreement" and the commitment to develop the Project for public recreation and commercial uses." Id. These intended uses, as set out in the NORA, " restricted the use of the property" and " limited the potential pool of interested bidders," thereby stifling " potential competition for BLM sale of this land." Id. " [I]n direct contravention of the terms and conditions" of the MPA " and the premises upon which BLM authorized the sale of the Property," however, the plaintiff's affiliates had circulated marketing materials to develop the Property for residential uses. Id. [7]

         The escrow instructions provided that BLM had 30 days, until December 28, 2012, to issue the patent after the plaintiff released the sale funds to the title company. AR 302, 308, 638, 641, 803. As of December 5, 2012, BLM understood that the " City does not believe it is in the public interest to issue the patent to [the plaintiff], as the contract between the City and [the plaintiff] is no longer in effect." Id.

         In order to facilitate its discussions with the City, on December 20, 2012, the plaintiff agreed to an escrow extension of 40 days until February 6, 2013. AR 301, 304, 523, 584. The plaintiff agreed to a second escrow extension until March 28, 2013, after the City filed suit, on January 28, 2013, in Nevada state court against the plaintiff " alleging fraud related claims and contract claims." AR 295, 301, 530-564. BLM was aware of the lawsuit and briefing on the City's motion for preliminary injunction in that case. AR 302, 311-434, 435, 437-517.

         In March 2013, the plaintiff and the City apparently settled that state court litigation without any admission on either side regarding liability. AR 202 (Settlement Agreement).[8] Under the terms of the settlement, the City agreed to withdraw any objection it lodged with BLM regarding the issuance of the patent, AR 200, and the plaintiff agreed to have its lenders pay the City $250,000 immediately and another $4,250,000 upon the plaintiff's receipt of the land patent, AR 198. Milam, the CEO of SSL, and any entity which he owns, controls or has an interest in, are prohibited from engaging in any business or development activities within the City, including any business or development activities relating to the Property, except for the limited purpose of " effect[ing] the purchase, financing and ultimate sale of any part, or all, of the [Property]." AR 200; see also Pl.'s Mem. at 9 (conceding that " [a]s a condition of the settlement, Christopher Milam, CEO of SSL, also agreed that he would not seek to or engage in any business activities in Henderson." ).[9] No agreement

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or plan for the Property is referenced in the settlement. See generally AR 197-214. The City subsequently advised BLM that it " has withdrawn its opposition stated in its November 29th letter to BLM to the issuance of a patent to [the plaintiff] to the Property pursuant to the April 4, 2012 Notice of Realty Action," and did not oppose the transfer of the patent on or before May 13, 2013. AR 131-32 (Letter, dated April 5, 2013 from City to BLM). In view of these developments, the plaintiff agreed to a third extension of the closing with BLM until May 13, 2013. AR 3.

         On May 10, 2013, three days before the scheduled date for the issuance of the patent, BLM submitted an almost 130-page " Recommendation Memorandum for the Assistant Secretary" of LLM regarding " Termination of Patent Issuance to [the Plaintiff] for Land Nominated for Sale by the City of Henderson, Nevada for Arena Development Project." AR 3-130 (hereinafter " Recommendation Mem." ). The same day, upon consideration of this Recommendation Memorandum, Tommy Beaudreau, LLM's then-Acting Assistant Secretary, issued a final Decision Memorandum approving BLM's recommendation to assert jurisdiction over the matter and directing BLM to: " (i) not issue the patent to [the plaintiff], (ii) terminate the sale process, and (iii) take the steps necessary to return the purchase deposit and bid guarantee to [the plaintiff], as expeditiously as practicable." AR 133, 138.

         BLM immediately advised the plaintiff the same day that the Acting Assistant Secretary for LMM directed BLM to: " (i) not issue the patent to [the plaintiff], (ii) terminate the sale process, and (iii) take the steps necessary to return the purchase deposit and bid guarantee to [the plaintiff], as expeditiously as practicable." AR 134 (Letter, dated May 10, 2013, from BLM to plaintiff " Re: Termination of Patent Issuance to [Plaintiff] for the 480 acres Nominated for Sale by the City of Henderson, Nevada for Arena Development Project" ). BLM explained that " the sports arena development agreement between the City of Henderson" and plaintiff " served as the basis for BLM's decision to utilize a modified competitive sales process for this parcel, as opposed to the competitive sales process" under the FLPMA. Id. [10] In light of the " the serious questions that arose subsequent to BLM's acceptance of [plaintiff's] purchase offer regarding the validity and veracity" of that agreement, " this basis for a modified competitive sale process no longer exists, and there remain unresolved questions about the underlying transaction." Id. Consequently, consistent with these directions, BLM did not deliver the patent to the plaintiff and terminated the purchase process for the Property by refunding the bid guarantee deposit and twenty percent deposit to plaintiff. AR 1.

         Less than a week after BLM notified the plaintiff that the patent on the Property

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would not be issued, the plaintiff, on May 15, 2013, filed the instant complaint requesting the Court to declare the LMM decision unlawful, to set it aside, and to order the BLM to issue the patent to the plaintiff, as well as to enjoin the BLM from reoffering the Property for sale. See Compl. PRAYER FOR RELIEF. After the AR had been compiled and lodged, the plaintiff filed a motion to compel supplementation of the AR, or in the alternative, to allow extra-record review or judicial notice of the Nevada District Court's March 7, 2013 Order dismissing without prejudice the City's fraud claims against the plaintiff. Pl.'s Mot. Suppl. AR, ECF No. 26. The Court denied the motion on July 24, 2014 because the plaintiff had " failed to meet its burden of overcoming the strong presumption that the agency accurately designated the Administrative Record." Silver State Land, LLC, 59 F.Supp.3d at 172. Currently pending before the Court are the plaintiff's motion for summary judgment and the agency's cross-motion for summary judgment. See Pl.'s Mot.; Defs.' Mot.


         A. Summary Judgment Standard Under Federal Rule of Civil Procedure 56

          Pursuant to Federal Rule of Civil Procedure 56, summary judgment may be granted when the Court finds, based upon the pleadings, depositions, affidavits, and other factual materials in the record, " that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a), (c); see Tolan v. Cotton, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). " A genuine issue of material fact exists if the evidence, 'viewed in a light most favorable to the nonmoving party,' could support a reasonable jury's verdict for the non-moving party." Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 215, 404 U.S.App.D.C. 131 (D.C. Cir. 2013) (quoting McCready v. Nicholson, 465 F.3d 1, 7, 373 U.S.App.D.C. 236 (D.C. Cir. 2006)).

          In APA cases such as this one, involving cross-motions for summary judgment, " the district judge sits as an appellate tribunal. The 'entire case' on review is a question of law." Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083, 348 U.S.App.D.C. 77 (D.C. Cir. 2001) (collecting cases). Thus, this Court need not and ought not engage in lengthy fact finding, since " [g]enerally speaking, district courts reviewing agency action under the APA's arbitrary and capricious standard do not resolve factual issues, but operate instead as appellate courts resolving legal questions." James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1096, 317 U.S.App.D.C. 281 (D.C. Cir. 1996); see also Lacson v. U.S. Dep't of Homeland Sec., 726 F.3d 170, 171, 406 U.S.App.D.C. 402 (D.C. Cir. 2013) (noting, in an APA case, that " determining the facts is generally the agency's responsibility, not ours" ); Sierra Club v. Mainella, 459 F.Supp.2d 76, 90 (D.D.C. 2006) (" Under the APA . . . the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." (quotation marks and citation omitted)). Judicial review is limited to the administrative record, since " [i]t is black-letter administrative law that in an APA case, a reviewing court should have before it neither more nor less information than did the agency when it made its decision." CTS Corp. v. EPA, 759 F.3d 52, 64, 411 U.S.App.D.C. 243 (D.C. Cir. 2014) (internal citations and quotation marks omitted; alteration in original); see 5 U.S.C. § 706 (" [T]he Court shall review the whole record or those parts of it cited by a party . . . ." ); Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743,

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105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (noting when applying arbitrary and capricious standard under the APA, " '[t]he focal point for judicial review should be the administrative record already in existence . . . .'" (quoting Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973))).

         B. Standard of Review Under Administrative Procedure Act

          The APA authorizes a reviewing court to set aside a challenged agency action " only if it is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Zevallos v. Obama, 793 F.3d 106, 112 (D.C. Cir. 2015) (citing 5 U.S.C. § 706(2)(A)) (other internal quotations and citation omitted). The scope of review under the " arbitrary and capricious standard is 'highly deferential,'" id.; Am. Trucking Ass'ns, Inc. v. Fed. Motor Carrier Safety Admin., 724 F.3d 243, 245, 406 U.S.App.D.C. 312 (D.C. Cir. 2013) (same), and " narrow," such that a court is not to substitute its judgment for that of the agency," Judulang v. Holder, 565 U.S. 42, 132 S.Ct. 476, 483, 181 L.Ed.2d 449 (2011); see also Fogo de Chao (Holdings) Inc. v. U.S. Dep't of Homeland Sec., 769 F.3d 1127, 1135, 413 U.S.App.D.C. 39 (D.C. Cir. 2014) (same); Agape Church, Inc. v. FCC, 738 F.3d 397, 408, 407 U.S.App.D.C. 408 (D.C. Cir. 2013) (same). Yet, " courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking," Judulang, 132 S.Ct. at 483-484, which is the " touchstone of arbitrary and capricious review," Pharm. Research & Mfrs. Of Am. v. FTC, 790 F.3d 198, 209 (D.C. Cir. 2015) (internal quotations and citation omitted). Simply put, " the agency must explain why it decided to act as it did." Butte County v. Hogen, 613 F.3d 190, 194, 392 U.S.App.D.C. 25 (D.C. Cir. 2010).

         The D.C. Circuit has recently summarized the circumstances under which an agency action would normally be " arbitrary and capricious" to include " 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." Pharm. Research & Mfrs. Of Am. v. FTC, 790 F.3d at 209. Thus, when an agency " 'fail[s] to provide a reasoned explanation, or where the record belies the agency's conclusion, [the court] must undo its action.'" Cnty. of Los Angeles v. Shalala, 192 F.3d 1005, 1021, 338 U.S.App.D.C. 168 (D.C. Cir. 1999) (quoting BellSouth Corp. v. FCC, 162 F.3d 1215, 1222, 333 U.S.App.D.C. 308 (D.C. Cir. 1999)); see Select Specialty Hosp.-Bloomington, Inc. v. Burwell, 757 F.3d 308, 312, 411 U.S.App.D.C. 26 (D.C. Cir. 2014) (noting that when " 'an agency's failure to state its reasoning or to adopt an intelligible decisional standard is [] glaring [] we can declare with confidence that the agency action was arbitrary and capricious'" (quoting Checkosky v. SEC, 23 F.3d 452, 463, 306 U.S.App.D.C. 144 (D.C. Cir. 1994))); Amerijet Int'l, Inc. v. Pistole, 753 F.3d 1343, 1350, 410 U.S.App.D.C. 176 (D.C. Cir. 2014) (" [A] fundamental requirement of administrative law is that an agency set forth its reasons for decision; an agency's failure to do so constitutes arbitrary and capricious agency action." (internal quotation marks and citation omitted)). " [C]onclusory statements will not do; an agency's statement must be one of reasoning." Amerijet Int'l Inc., 753 F.3d at 1350 (internal quotation marks omitted; emphasis in the original).

          When, as here, review of an agency's action is " bound up with a record-based factual conclusion," the reviewing court must determine whether that conclusion " is supported by substantial evidence." Dickinson v. Zurko, 527 U.S. 150, 164, 119 S.Ct. 1816, 144 L.Ed.2d 143 ...

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