United States District Court, D. Columbia.
[Copyrighted Material Omitted]
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FREDERICK MASHACK, KENNETH KATZ, JEFFREY M. AITKEN, ROBERT
KNOX, RENEE LYNCH, MIKE LYNCH, PATRICK D. TISDALE, SCOT
MONTREY, STEVE GROSS, RICHARD HENRY, BRIAN LEVY, PATRICK
CRAIG MULDOON, JAMES TRAINUM, Plaintiffs: Terri Allyn
Thompson, LEAD ATTORNEY, TERRI A. THOMPSON, ESQ., Washington,
DC; Leah Russin, PRO HAC VICE, LAW OFFICE OF LEAH RUSSIN,
Palo Alto, CA.
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.
BERMAN JACKSON, United States District Judge.
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.
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.
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.
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
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.
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"
) 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.
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.
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" ).
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
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
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" ).
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
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.
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,
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." ).
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.
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.'
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." ).
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,
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.
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).
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).
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
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
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.
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.
Plaintiffs have alleged sufficient interests in continued
operations at the Buzzard Point Marina to confer prudential
standing and to state a claim under
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
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.
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.
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).
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.
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." ).
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" ).
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.
Plaintiffs have failed to state a cognizable claim under the
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. ¶ ¶
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.
The Concessions Act does not impose a duty on the Park
Service to maintain a concessions contract for ...