United States District Court, District of Columbia
MEMORANDUM OPINION
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE.
Scattered
across the United States, telecommunications sites support
the ubiquitous phone and internet services on which customers
increasingly rely. Crown Castle GT Company, LLC
(“Crown”) operates a telecommunications site in
New Mexico, on federal land managed by Defendant Bureau of
Land Management (BLM). In 2003, Alamosa Properties LP
(“Alamosa”)-a subsidiary of Plaintiff Sprint
Corporation (together with Alamosa, “Sprint”)-
entered into a sublease with Crown that permitted it to place
antennas on Crown's existing cellular tower and
designated a lease area upon which Sprint planned to install
items known as cellular cabinets. A few years later, BLM
promulgated a regulation requiring any subtenant on a
telecommunications site that owns an “equipment
shelter” present there to obtain a separate BLM
authorization for it and pay a related fee.
This
case concerns BLM's subsequent application of this
regulation and the relevant authorizing statute to
Sprint's cellular cabinets. In 2013, BLM initiated a
trespass action against Sprint, assessing penalties against
it for failing to obtain a BLM authorization for its cellular
cabinets, on the theory that the cabinets qualified as
“equipment shelters” under the regulation. Sprint
appealed this determination to the Interior Board of Land
Appeals (IBLA or “Board”), arguing that it did
not trespass and that, even if it did, BLM lacked statutory
authority to impose the penalties in question. The IBLA
largely sided with BLM. Through this action, Sprint appeals
the IBLA's ruling.
Before
the Court are the parties' cross-motions for summary
judgment. For the reasons explained below, the Court
concludes that (1) the IBLA's determination that Sprint
trespassed on public land because its cellular cabinets
qualified as equipment shelters under the relevant regulation
was not arbitrary and capricious, and (2) the IBLA's
assessment of penalties against Sprint for its failure to
obtain a right-of-way authorization for the cellular cabinets
did not exceed its statutory authority. Therefore, the Court
will deny Sprint's Motion for Summary Judgment (ECF No.
23) and grant Defendants' Cross-Motion for Summary
Judgment (ECF No. 24).[1]
I.
Background
A.
Statutory and Regulatory Background
BLM, an
agency of Defendant Department of the Interior, is
responsible for managing public lands. The Federal Land
Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §
1701 et seq., governs its management of those lands.
See Norton v. S. Utah Wilderness All., 542 U.S. 55,
58 (2004). The statute authorizes BLM to grant rights-of-way
on public lands for telecommunications purposes. See
43 U.S.C. § 1761(a)(5). These “[r]ights-of-way
shall be granted, issued, or renewed . . . consistent with .
. . any . . . applicable law” and “shall also be
subject to such terms and conditions as the Secretary
concerned may prescribe regarding extent, duration, survey,
location, construction, maintenance, transfer or assignment,
and termination.” Id. § 1764(c). The
FLPMA provides that, when BLM grants a right-of-way,
“[t]he holder of a right-of-way shall pay in advance
the fair market value thereof, as determined by the Secretary
granting, issuing, or renewing such right-of-way.”
Id. § 1764(g).
BLM
regulations provide that users of public lands “must
have a grant under this part when [they] plan to use public
lands for systems or facilities over, under, on, or through
public lands.” 43 C.F.R. § 2801.9(a). A
“facility” is defined as “an improvement or
structure, whether existing or planned, that is or would be
owned and controlled by the grant or lease holder within a
right-of-way.” Id. § 2801.5. In the
telecommunications context, a “facility means the
building, tower, and related incidental structures or
improvements authorized under the terms of the grant or
lease.” Id. BLM regulations also provided that
“the holder of a right-of-way grant for communication
purposes may authorize other parties to use a facility,
without prior written consent of the authorized officer, if
so provided by terms and conditions of the grant.” 43
C.F.R. § 2801.1-1(f) (1996).
In June
2005, BLM promulgated a regulation (the “2005
Regulation”) that included new subsections (b) and (c)
below:
If I am a tenant or customer in a facility, must I have my
own grant or lease and if so, how will this affect my rent?
(a) You may have your own authorization, but BLM does not
require a separate grant or lease for tenants and customers
using a facility authorized by a BLM grant or lease that
contains a subleasing provision. BLM charges the facility
owner or facility manager rent based on the highest value use
within the facility (including any tenant or customer use
authorized by a separate grant or lease) and 25 percent of
the rent from the rent schedule for each of the other uses
subject to rent (including any tenant or customer use a
separate grant or lease authorizes and the facility
owner's use if it is not the highest value use).
(b) If you own a building, equipment shelter, or tower on
public lands for communication purposes, you must have an
authorization under this part, even if you are also a tenant
or customer in someone else's facility.
(c) BLM will charge tenants and customers who hold their own
grant or lease in a facility, as grant or lease holders, the
full annual rent for their use based on the BLM communication
use rent schedule. BLM will also include such tenant or
customer use in calculating the rent the facility owner or
facility manager must pay.
43 C.F.R. § 2806.36. In the Federal Register, BLM
explained that “[w]e added a new paragraph (b) to this
section to make it clear that when someone owns a building,
equipment shelter, or tower on public lands for communication
purposes, they must have a BLM right-of-way authorization for
their improvements, even if they are a tenant or customer in
someone else's facility.” Rights-of-Way, Principles
and Procedures; Rights-of-Way Under the Federal Land Policy
and Management Act and the Mineral Leasing Act, 70 Fed. Reg.
20, 970, 21, 015 (Apr. 22, 2005). According to BLM, the new
subsection (b) was “consistent with current [BLM]
policy” at the time and was designed to
“eliminate confusion among some right-of-way
holders.” Id.
B.
Factual and Procedural Background
1.
The Orogrande Communications Site
The
Orogrande Communications Site (the “Site”) is
located in south-central New Mexico. Pl.'s MSJ Br. at 1.
In 1990, BLM issued “communications right-of-way
grant/temporary use permit” number 83847 for the Site.
Id. at 4; AR 59-60. The right-of-way granted the
“right to construct, operate, maintain, and terminate a
communication site and access road” and to place
“[c]ellular mobile and portable communications”
equipment on the Site. AR 59-60. In particular, the original
right-of-way permitted the holder to place a 125-foot
self-supporting steel monopole microwave antenna, a 12-foot
high equipment building, a generator, a fuel tank, an access
road, and a fence encumbering 3, 250 square feet of public
lands on the Site. AR 24, 35, 59-60, 490-91. The holder
agreed to pay BLM “fair market value” for the
right-of- way. AR 60. The right-of-way provided that
“[i]f renewed, the right-of-way permit shall be subject
to the regulations existing at the time of renewal.” AR
59.
In
2000, Crown acquired the right-of-way via assignment. AR
327-28, 338-39. BLM approved the assignment “subject to
the terms and conditions of the original [right-of-way (ROW)]
grant.” AR 354. The assignment “cover[ed] the
right to construct, operate, maintain, and terminate a
communication site and access road” at the Site. AR
355. The right-of-way did not authorize subleasing without
advance notice to and approval by BLM. AR 500. After
acquiring the assignment, Crown requested authorization to
enter into subleases with tenants at the Site. In January
2001, BLM granted Crown authority to sublease “subject
to the terms and conditions of the original ROW grant”
and “[a]ll applicable regulations in 43 CFR
2800.” AR 371. That same month, BLM also granted Crown
approval to amend the original right-of-way to install a
140-foot self-supporting tower. AR 366.
In
January 2003, Crown entered into a sublease (the
“Sublease”) with Sprint for its tenancy at the
Site. AR 962-1024. The Sublease's terms, conditions, and
covenants were “subject to and subordinate to”
the terms, conditions, and covenants of Crown's
right-of-way, also referred to as the “Prime
Lease.” AR 967. The Sublease authorized Sprint to
install four 60-inch by 12-inch by 7-inch antennas weighing
27 pounds each on Crown's tower, at a specified height.
AR 962. The Sublease also designated a “lease
area” of 17 feet by 12 feet by 10 feet for Sprint,
referred to as “[e]quipment building/floor
space.” AR 962; see also AR 997 (showing the
“[p]roposed . . . lease area”). The Sublease
required Sprint to use the Site “in compliance with all
applicable . . . regulations . . . of any governmental bodies
and administrative agencies” and “obtain, at its
own expense, any and all necessary licenses or permits . . .
from such governmental authorities as shall have jurisdiction
in connection with the construction, installation, operation,
repair, alteration or replacement of [its] equipment or with
any of its activities thereon.” AR 965. The Sublease
provided that Sprint would pay Crown a “Basic Monthly
Payment” (starting at $1, 500/month) and
“Additional Payments” for the “portion, if
any, of any tax, fee or other assessment attributable to
[Sprint's] use of the Facility or against the Facility
generally . . . .” AR 963. After the Sublease was
executed, Sprint installed its antennas on the tower and its
cellular cabinets at the Site. Pl.'s MSJ Br. at 5; Compl.
¶ 3. Pursuant to the lease between BLM and Crown, Crown
submitted rental calculation spreadsheets to BLM between 2003
and 2013 that listed tenants at the Site, including
Sprint.[2] Pl.'s MSJ Br. at 8 (citing AR 403,
405, 410, 446, 517, 527, 592, 597, 602, 605, 607). However,
Sprint did not seek authorization from BLM for its cellular
cabinets, either before or after the 2005 Regulation was
promulgated.
2.
BLM's Management of the Site and Sprint's Alleged
Trespass
As the
manager of the federal public lands, BLM periodically
inspected the Site. In March 2005, a BLM employee performed a
compliance check at the Site and documented Sprint's
cellular cabinets. See AR 430 (noting one
“outside cabinet not on lease, possibly owned by
Alamosa and/or Sprint”). He recommended that BLM
“[i]ssue [a] separate lease to [the] owner of [the]
outside cabinet.” Id.
In
2008, BLM also issued a guidance document for the Site called
the Orogrande Communications Site Plan (the “2008 Site
Plan”). See AR 541-91. The 2008 Site Plan
“govern[ed] development and management of” the
Site, AR 544, and was “incorporated into all leases,
grants, and reservations issued” for the Site, AR 547.
It included pictures of Sprint's cellular cabinets and
labeled them on a diagram of the Site. AR 568, 590. But an
appendix to the 2008 Site Plan listed the cabinets as a
“facility” without an authorization number.
See AR 570 (showing “Auth # NMNM xxxxxx”
for “South Facility #4 Alamosa (Sprint)”). The
2008 Site Plan also contained provisions addressing
tenants' rights to build equipment shelters.
Specifically, it provided that “[t]enants . . . may not
construct their own equipment shelter (building, shelter or
cabinet) . . . [and] [i]f that is not possible, a separate .
. . application . . . and authorization are required.”
AR 548. The 2008 Site Plan further provided that if a tenant
had to construct its own equipment shelter, it is “a
tenant/customer of the original lease/holder in addition[] to
being a separate facility for billing purposes.”
Id.
In
2009, BLM personnel again noted the presence of potentially
unauthorized cabinets on the Site. See AR 600
(containing note to “check if authorized, ” in
reference to the cabinets).
In
April 2013, a BLM employee conducted an audit of the Site. AR
648. He determined that Sprint had placed
unauthorized cellular cabinets on the Site. Pl.'s MSJ Br.
at 9 (citing AR 638-47). As a result, BLM issued a trespass
notice (“the Trespass Notice”) to Sprint on May
29, 2013. AR 655-58. The Trespass Notice stated that BLM had
discovered equipment operating at the Site that it believed
belonged to Sprint. AR 655. On July 2, 2013, Sprint responded
to the Trespass Notice, making the case that it was not
trespassing because it was occupying the Site pursuant to its
Sublease with Crown. AR 659-61. On July 23, 2013, BLM issued
a trespass decision (the “Trespass Decision”)
against Sprint. AR 670-78. It concluded that Sprint had
violated 43 C.F.R. § 2808.10, the regulation defining
trespass, and 43 C.F.R. § 2806.36(b). AR 670-71. The
Trespass Decision required Sprint to pay $86, 931.96 for
having its cellular cabinets on the Site between 2003 and
2013. AR 674-75.
3.
Sprint's ...