United States District Court, D. Columbia
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
SILVER STATE LAND LLC, Plaintiff: W. Hartmann Young, LEAD
ATTORNEY, Paul Burton Smyth, John F. Henault, Jr., PERKINS
COIE LLP, Washington, DC.
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.
A. HOWELL, United States District Judge.
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. For the reasons set forth below, the
agency's motion is granted and the plaintiff's motion
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. 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.
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. 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"
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).
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). 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).
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.
" careful review" of the City's request and the
LVNSC proposal, BLM concluded
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.
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.
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. On June 12, 2012, BLM
confirmed the plaintiff as the successful
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.
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.
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.
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]."
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). 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
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. 
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
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.
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). 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." ). No agreement
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.
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.
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.  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.
than a week after BLM notified the plaintiff that the patent
on the Property
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.'
Summary Judgment Standard Under Federal Rule of Civil
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.
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,
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))).
Standard of Review Under Administrative Procedure
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).
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).
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