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Mashack v. Jewell

United States District Court, D. Columbia.

February 26, 2016

FREDERICK MASHACK, et al., Plaintiffs,
SALLY JEWELL, in her official capacity as Secretary, 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 SALLY JEWELL, in her official capacity as Secretary, U.S. DEPARTMENT OF THE INTERIOR, JONATHAN B. JARVIS, in his official capacity as Director, GOPAUL NOOJIBAIL, in his official capacity as Superintendent, National Capital Parks East, ROBERT A. VOGEL, In his official capacity as Regional Director, Defendants: Rhonda Lisa Campbell, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

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         AMY BERMAN JACKSON, United States District Judge.

         A group of boat owners who lease slips at Buzzard Point Marina, and several of their friends, have brought this action against the Department of the Interior and individual agency and Park Service officials, challenging the closure of the marina, a National Park Service facility. Am. Compl. [Dkt. # 41]. Plaintiffs have been informed that marina concessions services will be discontinued when the current concessioner's contract expires, and that they must move their boats, but they ask the Court to declare that the Park Service has a statutory obligation to continue to operate the Washington, D.C. site. Id. They contend that the Park Service has violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. ; the National Historic Preservation Act (NHPA), 54 U.S.C. § 300101 et seq. ; the National Park Service Concessions Management Improvement Act of 1998 (Concessions Act), 54 U.S.C. § § 101524, 101911-101926; the Administrative Procedure Act (APA), 5 U.S.C. § § 701-706; and its own regulations: 36 C.F.R. § § 1.5 and 1.7. Am. Compl. ¶ ¶ 6, 81-100. The parties have filed cross-motions for summary judgment, and defendants have moved to dismiss some of plaintiffs' claims for lack of prudential standing and for failure to state a claim.

         What plaintiffs seek is an order that would enable them to continue to dock their boats at the marina. They have derived considerable enjoyment from boating on the Potomac and Anacostia rivers for many years, utilizing the conveniently-located and well-priced facility at Buzzard Point that accommodates their small boats and provides the amenities they desire. Plaintiffs are understandably disappointed with the current state of affairs, and they wish to participate in the Park Service's planning process to ensure that it takes account of the longstanding use of Buzzard Point by a diverse and devoted boating community. And they are correct in their understanding that the ultimate disposition of the Park Service facility must comport with both federal environmental statutes and agency regulations.

         But plaintiffs have advanced their claims in this case by conflating discrete decisions and events, misstating the significance and scope of particular record documents, and blurring the distinctions between separate statutory and regulatory regimes. When one disentangles the jumble of evolving legal theories that plaintiffs have put before the Court -- as one must do to assess the validity of any individual claim -- it becomes clear that the Park Service has acted in accordance with the law to date, and that many of the necessary steps have not yet been undertaken and are not yet subject to challenge.

         More important, the Court cannot grant plaintiffs the remedy they seek -- the right to stay at Buzzard Point -- in the absence of a concessioner to operate the marina. The Court simply cannot force the government to solicit a new contract pursuant to the Concessions Act or any other statute, and that is really the beginning and end of plaintiffs' action for injunctive relief. For those reasons and the reasons set forth

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below, the count based on the Concessions Act will be dismissed, plaintiffs' motion for summary judgment on the other counts will be denied, and defendants' motion for summary judgment will be granted. But as the agency itself has acknowledged, the Park Service will be required to engage in the applicable NEPA/NHPA analysis before disturbing the physical environment at the marina or closing it permanently, and it will need to generate an appropriate record in accordance with those statutes and its own regulations, including 36 C.F.R. § 1.5, as it moves forward with future plans for the location.


         I. Factual Background

         Buzzard Point Marina is located at 2158 Half Street Southwest in Washington, D.C. Mem. in Supp. of Defs.' Mot. for Summ. J. [Dkt. # 23] (" Defs.' Mem." ) at 1. The marina has been operated " for decades" by a Park Service concessioner, Buzzard Point Boatyard Corporation, id. at 6, most recently pursuant to Park Service contract CC-NACE003-06, which expired on December 31, 2011. See, e.g., Administrative Record (" AR" )[1] 0343. The contract was extended on three occasions, each time for a period of one year, culminating in a final extension through December 31, 2014. AR 0122; AR 0269. After that contract expired, Buzzard Point Boatyard Corporation continued to operate the marina under temporary concession contract TC-NACE003-15, which was set to expire by its own terms on December 31, 2015. AR 0001-80.

         Between 2013 and 2015, the Park Service considered several options for the continuation of concessions services at the marina, including combining Buzzard Point operations with the nearby James Creek Marina. See, e.g., AR 0244-47; AR 0338. But Park Service employees expressed concerns about the long-term financial feasibility of the project and the costs of deferred maintenance at the site. See, e.g., AR 0125-28; AR 0244-47; AR 0338. In July 2013, for example, an inspection team observed that " [t]he [marina] grounds appeared to be well maintained," but " [t]he floating docks on the other hand have some issues," including soft spots, rotted pilings, inconsistent use of materials, and other safety hazards. AR 0099. In February 2014, the Park Service engaged third-party contractors to conduct a " comprehensive condition assessment" at the marina. AR 0161-65. The assessment found that the marina's dock structures were " in fair to poor condition," and that the marina infrastructure was in need of repair and maintenance. AR 0163-65.

         While the Park Service considered releasing a prospectus combining the Buzzard Point operations with another marina operation, see AR 0338; AR 0343, the agency decided in August 2015 not to solicit proposals for a new concessions contract for the facility. See AR 0381-84 (Park Service letter to Buzzard Point Boatyard Corporation explaining that the agency has " decided not to continue marina concession operations at Buzzard Point Marina after the expiration of concession contract TC-NACE-003-15 on December 31, 2015" because " the condition of the marina facility warrants extensive improvements, but the cost is too great to make it a profitable business" ).

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          On August 31, 2015, the Park Service and Buzzard Point Boatyard Corporation sent a joint letter to marina slip holders, informing them that " effective December 31, 2015, slip rental and marina concession operations at the Buzzard Point Marina will be discontinued and the marina will be closed." AR 0385. The letter explained that " [p]ast concession contracts did not allow for any capital investment or improvements to be made at the marina," and that " the level of investment now needed makes this marina concession not financially feasible." AR 0385. For those reasons, the letter advised that " a new concession contract prospectus would not be advertised for the Buzzard Point Marina site." AR 0385. The letter stated that marina patrons had until December 31, 2015 " to arrange to relocate their boats, trailers, and personal property," and it provided recipients with " a list of several area marinas and their current slip availability" to that end. AR 0385; see also AR 0389.

         On September 3, 2015, the Park Service issued a " Record of Determination for a Temporary Closure of Buzzard Point Marina Due to the Concession Being Discontinued and the Need to Conduct Facility Stabilization, Maintenance, and Safety Related Projects," pursuant to 36 C.F.R. § 1.5(a). AR 0397 (" Record of Determination" ). In that document, the Park Service reported that " on December 31, 2015, marina concession operations by Buzzard Point Boatyard Corporation will be discontinued and the marina closed." AR 0397. It explained that the marina would be temporarily closed as of January 1, 2016 " to ensure public health and safety while the area undergoes facility stabilization, maintenance, and safety related projects and activities," and that the removal of marina-related infrastructure would begin after the marina was closed. AR 0397. The agency concluded that less restrictive measures than a closure would not suffice, and it found that " [t]he closure is not of a nature, magnitude and duration that will result in a 'significant alteration in the public use pattern'" because the closure was of limited duration, other nearby parks would remain open, and " other adjacent marinas are open to the public and available to boaters." AR 0397; see also Ex. 1 to Defs.' Notice to Ct. [Dkt. # 48-1] (map depicting the contiguous locations of Buzzard Point Marina and James Creek Marina); AR 0091 (" [T]here are six marinas in the immediate vicinity of Buzzard Point Marina, and another... approximately 5 miles downriver." ). Because the Park Service further determined that the temporary closure would not impair park resources and values and was not of a highly controversial nature, it concluded that publication as a rulemaking in the Federal Register was not necessary. AR 0397.

         In November 2015, as part of its NEPA compliance, the Park Service completed a " Categorical Exclusion Form" for a project entitled " Temporary Closure of Buzzard Point Marina," which explained that a temporary closure would be necessary to ensure public health and safety after marina concessions services terminated on December 31, 2015. AR 0392 (" Categorical Exclusion Form" ). The Park Service also prepared an " Assessment of Actions Having an Effect on Historic Properties" for the same project -- the " Temporary Closure of Buzzard Point Marina" -- finding that the temporary closure had no potential to cause any effects to historic resources. AR 0394-96 (" Assessment of Effects Form" ).

         II. Procedural History

         On December 8, 2015, plaintiffs filed this lawsuit. Compl. [Dkt. # 1]. The complaint was accompanied by a motion for a temporary restraining order and preliminary injunction to prevent the marina from being closed on December 31, 2015. Pls.' Mot. for

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TRO & Prelim. Inj. [Dkt. # 2]. Plaintiffs challenge the decision not to solicit a new concessions contract for marina services at Buzzard Point, the temporary closure of the marina, and the planned removal of the marina infrastructure. Am. Compl.

         On December 9, 2015, the Court held a teleconference with the parties and consolidated the emergency motions with the merits pursuant to Federal Rule of Civil Procedure 65(a). Min. Order (Dec. 9, 2015). On December 11, 2015, defendants notified the Court that the Park Service had reached an agreement with the Buzzard Point Boatyard Corporation " to temporarily renew concessionary management services for the Buzzard Point marina for a period from January 1, 2016 through February 29, 2016." Defs.' Notice to Ct. [Dkt. # 6] at 2. The Court then denied plaintiffs' motion for a temporary restraining order as moot and set a schedule for the expedited consideration of plaintiffs' claims on the merits within that time frame. Min. Order (Dec. 14, 2015).

         On January 11, 2016, defendants filed their motion for summary judgment. Defs.' Mot. for Summ. J. [Dkt. # 23]. On January 27, 2016, plaintiffs filed a motion for leave to file an amended complaint, seeking to assert a new claim under the Concessions Act, Pls.' Mot. to Amend Compl. [Dkt. # 35], and they also filed a combined cross-motion for summary judgment and opposition to defendants' motion. Pls.' Mot. for Summ. J. [Dkt. # 36]. Defendants opposed the motion for leave to amend, arguing that amendment would be futile because the Concessions Act claim would not survive a motion to dismiss and should be denied as a matter of law. Defs.' Opp. to Pls.' Mot. for Leave to Amend Compl. [Dkt. # 39] (" Defs.' Opp." ).

         The Court granted plaintiffs' motion for leave to amend on February 3, 2016. Min. Order (Feb. 3, 2016). However, because defendants did not have the opportunity to address the newly-added Concessions Act count in their motion for summary judgment, the Court permitted defendants to move to dismiss that claim pursuant to Federal Rule of Civil Procedure 12(b)(6) as part of their reply and opposition to plaintiffs' cross-motion for summary judgment, incorporating the opposition to the motion for leave to amend by reference. Id.

         On February 5, 2016, defendants filed a reply in support of their motion for summary judgment, an opposition to plaintiffs' cross-motion, and a motion to dismiss for lack of prudential standing and for failure to state a claim. Defs.' Reply in Supp. of Defs.' Mot. for Summ. J. & Cross-Opp. to Pls.' Mot. for Summ. J. & Defs.' Mot. to Dismiss [Dkt. # 43] (" Defs.' Mot. to Dismiss" ). And on February 9, 2016, plaintiffs opposed defendants' motion to dismiss and filed a reply in support of their cross-motion for summary judgment. Pls.' Reply in Supp. of Pls.' Mot. for Summ. J. & Opp. to Defs.' Mot. to Dismiss [Dkt. # 45] (" Pls.' Reply" ).

         The Court held a hearing on the motions on February 11, 2016. Min. Entry (Feb. 11, 2016); Draft Tr. of Hr'g, Mashack v. Jewell, No. 15-2107 (D.D.C. argued Feb. 11, 2016) (" Draft Hr'g Tr." ). The parties also submitted post-hearing memoranda. Defs.' Notice to Ct. [Dkt. # 48]; Pls.' Mem. of P. & A. in Supp. on APA [Dkt. # 49] (" Pls.' Post-Hr'g Suppl." ).


         I. Motion to Dismiss

         " To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), quoting Bell A. Corp. v. Twombly,

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550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when the pleaded factual content " allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, citing Twombly, 550 U.S. at 556. " The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id., quoting Twombly, 550 U.S. at 556. A pleading must offer more than " labels and conclusions" or a " formulaic recitation of the elements of a cause of action," id., quoting Twombly, 550 U.S. at 555, and " [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id., citing Twombly, 550 U.S. at 555.

         When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed liberally in the plaintiff's favor, and the Court should grant the plaintiff " the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276, 305 U.S.App.D.C. 60 (D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. Id. ; see also Browning v. Clinton, 292 F.3d 235, 242, 352 U.S.App.D.C. 4 (D.C. Cir. 2002). In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider only " the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C. 2002), citing EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25, 326 U.S.App.D.C. 67 (D.C. Cir. 1997).

         II. Summary Judgment

         Summary judgment is appropriate when the pleadings and evidence show that " there is no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). However, Rule 56 does not apply to cases arising under the Administrative Procedure Act (" APA" ), in light of a court's limited role in reviewing the administrative record. Select Specialty Hosp. - Akron, LLC v. Sebelius, 820 F.Supp.2d 13, 21 (D.D.C. 2011). Under the APA, it is the agency's responsibility to resolve the factual issues and arrive at a decision that is supported by the administrative record, and the court is left 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." Occidental Engineering Co. v. Immigration & Naturalization Service, 753 F.2d 766, 769-70 (9th Cir. 1985), citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); see also Richards v. INS, 554 F.2d 1173, 1177, 180 U.S.App.D.C. 314 & n.28 (D.C. Cir. 1977).

         Under the APA, a court must " hold unlawful and set aside agency action, findings, and conclusions" that are " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A), in excess of statutory authority, id. § 706(2)(C), or " without observance of procedure required by law," id. § 706(2)(D). But this is a narrow scope of review. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The agency's decision is presumed to be valid, see Citizens to Preserve Overton Park, 401 U.S. at 415, and the court must not " substitute its judgment for that of the agency." State Farm, 463 U.S. at 43. A court must be satisfied, though, that the

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agency has examined the relevant data and articulated a satisfactory explanation for its action, " including a rational connection between the facts found and the choice made." Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6, 373 U.S.App.D.C. 65 (D.C. Cir. 2006) (internal quotation marks omitted).


         The amended complaint consists of four claims. In Count I, plaintiffs allege that defendants violated the National Environmental Policy Act by failing to prepare an adequate environmental analysis for, and to involve the public in, the " destruction and closure, if permitted," of Buzzard Point Marina, and by failing to provide adequate public notice of the Park Service's " approval of the discontinuation of a concession for marina services." Am. Compl. ¶ ¶ 82-84. In Count II, they maintain that defendants violated 36 C.F.R. § § 1.5 and 1.7 and the Administrative Procedure Act by failing to publish notice of the decision to permanently remove the boat slips at Buzzard Point Marina in the Federal Register. Id. ¶ 85. In Count III, plaintiffs contend that defendants' failure to maintain a concessions contract for marina services at Buzzard Point is a violation of the National Park Service Concessions Management Improvement Act. Am. Compl. ¶ ¶ 89-91. And in Count IV, plaintiffs allege that defendants violated the National Historic Preservation Act by failing to consult with the public and consider all plausible alternatives prior to reaching the determination that marina services at Buzzard Point should be discontinued and the marina closed. Id. ¶ ¶ 95-97.

         Plaintiffs' claims in this matter boil down to their desire to keep their boats at Buzzard Point Marina, and one can understand why they hope to extend the particular boating experience they have enjoyed for several decades. But in their effort to obtain relief, plaintiffs ask the Court to view several discrete actions taken by the Park Service in combination, including some that are not yet sufficiently final to permit judicial review. Despite plaintiffs' assertions to the contrary, the Park Service's decisions to forego the solicitation of a new concessions contract, to close the marina temporarily, and to remove the marina infrastructure are severable, and each must be separately examined for compliance with the relevant statutes and regulations. And upon review of those decisions, the Court concludes that neither the Concessions Act, NEPA, the NHPA, nor the APA provide grounds to challenge the contracting decision; that the Park Service complied with NEPA, the NHPA, and 36 C.F.R. § § 1.5 and 1.7 in temporarily closing the marina; and that the issue of the agency's compliance with law in connection with the removal of marina infrastructure and any permanent closure is not yet ripe. Thus, plaintiffs' motion for summary judgment will be denied and defendants' motions -- with the exception of the motion to dismiss the environmental claims on standing grounds -- will be granted.

         I. Plaintiffs have alleged sufficient interests in continued operations at the Buzzard Point Marina to confer prudential standing and to state a claim under NEPA.

         The Court begins with defendants' motion to dismiss plaintiffs' NEPA claims in Count I for lack of prudential standing. Defendants contend that " [p]laintiffs' interest in continuing the concession contract at the marina does not fall within the zone of interests that NEPA was intended to protect." Defs.' Mot. to Dismiss at 2. While plaintiffs' asserted recreational and aesthetic interests relate more to boating generally than to the continuation of operations at the Buzzard Point Marina in particular, and their allegations of potential

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environmental harms are conclusory and speculative, the Court finds that they have shown just enough to fall within NEPA's zone of interests. Thus, defendants' motion to dismiss Count I on those grounds will be denied.

         Plaintiffs assert that they " have a long-standing interest in the preservation of access to the waterways of the District of Columbia and to affordable access to marina services." Am. Compl. ¶ 9. They state that they " regularly engage in recreational activities at Buzzard Point Marina and on the Anacostia and Potomac Rivers, as well as the Washington Channel, including boating, sailing, bird watching, and aesthetic enjoyment." Id. Plaintiffs maintain that permitting the Park Service to close Buzzard Point Marina would " reduc[e] Plaintiffs' opportunity to boat, sail, and enjoy the Anacostia and Potomac Rivers, particularly the opportunity to enjoy the vistas from their marina slip and observe and preserve marine/wild-life by providing a place for birds and other marine/wild-life to nest, feed, and seek refuge from predators." Id. ¶ 10. Plaintiffs' declarations couple these broad sentiments with statements that underscore the significance of the " affordable" nature of the Buzzard Point services. See e.g., Decl. of Kenneth Katz in Supp. of Pls.' Mot. for Summ. J. [Dkt. # 36-1] (" Katz Decl." ) ¶ 14 (" [A] slip appropriate to the size and nature of my sailboat leased at James Creek Marina costs 50% more than my current Buzzard Point Marina slip." ); Aff. of Steve Gross in Supp. of Pls.' Mot. for Summ. J. [Dkt. # 36-2] ¶ 3 (" I have . . . a long-standing interest in . . . access to affordable boating." ); Aff. of Jeffrey M. Aitken in Supp. of Pls.' Mot. for Summ. J. [Dkt. # 36-3] ¶ 11 (" The costs associated with relocating my boat to another marina (in Maryland) are substantial." ). And they highlighted that aspect of their concerns at oral argument as well: " [i]t is cost prohibitive for some of these [plaintiffs] to move their boats." Draft Hr'g Tr. 17:12-13.

         Defendants do not challenge plaintiffs' standing to invoke the Court's subject matter jurisdiction under Article III. But " [i]n addition to constitutional standing, a plaintiff must have a valid cause of action for the court to proceed to the merits of its claim," Gunpowder Riverkeeper v. FERC, 807 F.3d 267, 273 (D.C. Cir. 2015), and " a statutory cause of action extends only to plaintiffs whose interests fall within the zone of interests protected by the law invoked." Id., quoting Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 1388, 188 L.Ed.2d 392 (2014).

         The Court of Appeals emphasized in Gunpowder Riverkeeper that " [t]he zone of interests protected by the NEPA is, as its name implies, environmental; economic interests simply do not fall within that zone." Id. at 274, citing ANR Pipeline Co. v. FERC, 205 F.3d 403, 408, 340 U.S.App.D.C. 295 (D.C. Cir. 2000). " To be sure, a [party] is not disqualified from asserting a claim under the NEPA simply because it has an economic interest in defeating a challenged regulatory action." Id., citing Realty Income Trust v. Eckerd, 564 F.2d 447, 452, 183 U.S.App.D.C. 426 (D.C. Cir. 1977) (" [A] party is not precluded from asserting cognizable injury to environmental values because his 'real' or 'obvious' interest may be viewed as monetary." ). But a party " must assert an environmental harm in order to come within the relevant zone of interests," id., citing Eckerd, 564 F.2d at 452 & n.10, and that zone of interests " does not encompass monetary interests alone." Id., quoting Eckerd, 564 F.2d at 452 n.11. So plaintiffs' economic interests alone are insufficient to bring them within the zone of interests that NEPA was intended to protect.

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          Plaintiffs also maintain that they have an interest in " access to the waterways of the District of Columbia" and the " opportunity to boat, sail, and enjoy the Anacostia and Potomac Rivers," Am. Compl. ¶ ¶ 9-10, but those interests are not threatened by the Park Service's challenged actions here. The agency's decision-making documents -- the Record of Determination, the Categorical Exclusion Form, and the Assessment of Effects Form -- speak only of a temporary closure of Buzzard Point, and they do not purport to affect any other nearby marina or restrict access to or sailing on the Anacostia and Potomac Rivers in any way. See AR 0392; AR 0394-97. The fact that plaintiffs may have difficulty storing their boats nearby because " many of [their] boats are of a type and size that will not be accepted at other marinas," Draft Hr'g Tr. 17:5-7, is not an injury to plaintiffs' ability to experience the water in general, or an injury that was caused by the Park Service. So, plaintiffs' general recreational interests in boating and sailing along the waterways adjacent to the marina are similarly insufficient to confer prudential standing under NEPA. See, e.g., Steffan v. Perry, 41 F.3d 677, 697, 309 U.S.App.D.C. 281 (D.C. Cir. 1994) (" Prudential standing . . . like Article III standing, focuses in part on causation." ).

         In the end, though, applying the authority that is binding in this Circuit leads to the conclusion that plaintiffs have, if just barely, asserted sufficient environmental and recreational interests in the marina itself to bring themselves within the zone of interests protected by the NEPA statute. They proclaim an interest in observing the particular views available once they are docked at their assigned marina slips at Buzzard Point, and in enjoying the wildlife that has occasionally taken up residence on or around the docks, and they hypothesize that the animal habitat may be disturbed by the eventual removal of the marina infrastructure. See Am. Compl. ¶ 10 (stating that the marina closure would reduce plaintiff's " opportunity to enjoy the vistas from their marina slip" ); Draft Hr'g Tr. 18:10-15 (" [T]here was a bird that nested on one of the boats and the... members of the community ... appreciated the [bird] as it nested on the [dock] . . . and there was this additional member of the community for that spring." ); Katz Decl. ¶ ¶ 10-11 (noting that " [d]ucks and other waterfowl are known to roost and nest in and near the docks, which the Service proposes to remove," and positing that removing the docks at the marina would " disturb[] the Anacostia River bed with unknown consequence to the riverbed itself, as well as the animals and plants in the area" ).

         While plaintiffs' stated interests in their " vistas" are not weighty, and their fears of potential environmental harm to wildlife habitat are vague and speculative, the D.C. Circuit has found that " aesthetic and environmental interests in the quality of public lands where [a plaintiff] hikes, camps, [or] fishes" are " qualifying ones" for the purposes of NEPA. Mountain States Legal Found v. Glickman, 92 F.3d 1228, 1236, 320 U.S.App.D.C. 87 (D.C. Cir. 1996). Applying that principle, defendants' motion to dismiss for lack of prudential standing will be denied.

         II. Plaintiffs have failed to state a cognizable claim under the Concessions Act.

         Defendants have also moved to dismiss Count III for failure to state a claim under Rule 12(b)(6). Defs.' Opp. at 2-4; Defs.' Mot. to Dismiss at 1 n.1, 3. In Count III, plaintiffs claim that the Park Service's failure to extend or reissue a concessions contract for Buzzard Point Marina violated the Concessions Act. Am. Compl. ¶ ¶ 89-91.[2]

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Defendants argue that the Act imposes no affirmative obligation on the Park Service to provide for concession services at the marina or any other park, and that the Act only serves to limit the Park Service's authority to award concessions contracts. Defs.' Opp. at 2-4; Defs.' Mot. to Dismiss at 3. The Court agrees, and for that reason, Count III fails on its face.

         A. The Concessions Act does not impose a duty on the Park Service to maintain a concessions contract for ...

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