MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
This is
an Administrative Procedure Act (“APA”) case
challenging the manner by which the National Park Service
(“NPS”) has reallocated the rights to provide
oversnow vehicle shuttle service transportation events in
Yellowstone National Park. Before the Court is
Plaintiff's [23] Motion for Judgment on the
Administrative Record and Defendants' [25] Cross-Motion
for Summary Judgment on the Administrative Record. Upon
consideration of the pleadings, [2] the relevant legal
authorities, and the record as it currently stands, the Court
DENIES Plaintiff's Motion for Summary Judgment and GRANTS
Defendants' Cross-Motion for Summary Judgment. The Court
concludes that NPS did not violate the APA by reallocating
the shuttle service transportation events in a closed process
among existing concessioners. The reallocation of these
transportation events did not materially alter the existing
concessioner's contract; accordingly, a public
solicitation process was unnecessary. And, because it was
permissible for NPS to exclude Plaintiff and restrict the
solicitation process to existing concessioners, Plaintiff
does not have standing to challenge the specific method by
which NPS reallocated these transportation events.
I.
BACKGROUND
In
2013, NPS issued a Prospectus soliciting offers for
concessioners to provide guided interpretive oversnow vehicle
tours in Yellowstone National Park. AR1. Twenty-three
concession contracts were awarded pursuant to the Prospectus,
including ten contracts for the South entrance of
Yellowstone. AR10. Each contract allotted to the concessioner
one or more daily oversnow vehicle “transportation
event.” Id.
Plaintiff
had submitted proposals to obtain concession contracts for
the South entrance as Plaintiff had previously provided
oversnow vehicle services in Yellowstone. However, Plaintiff
was not granted a contract. Instead, with respect to the
South entrance contracts, NPS awarded one contract to DTRS
Jackson Hole, LLC dba Four Seasons Jackson Hole, seven
contracts to Forever Resorts, LLC dba Scenic Safaris, and two
contracts to Teton Science Schools. AR170.
The
contract awarded to Four seasons included two daily
transportation events, including one daily snowmobile event.
AR356. In October 2014, Four Seasons requested that its
contract be terminated, so NPS terminated the contract.
AR401. Various existing concessioners expressed interest in
obtaining the unused transportation events. AR402-08,
AR444-45. Nevertheless, the two transportation events
remained unused for the 2014-2015 and 2015-2016 winter
seasons. AR421, AR429.
After
hearing that NPS was assessing interest in the two unused
transportation events, Plaintiff contacted NPS regarding the
transportation events in July 2016. AR475. Plaintiff was told
that no decision had been made and that “[w]e will add
you to the list to be notified of any future
opportunities.” AR476.
In
October 2016, NPS notified existing concessioners already
holding contracts that it had decided to reassign the two
unused transportation events “on an experimental basis
for one season” and asked interested concessioners to
participate in a lottery to reallocate the transportation
events. AR478-79. NPS advised concessioners that “[t]he
events can be used for one-way shuttle service to and from
Old Faithful, for guided interpretive tours that included
oneway service to and from Old Faithful, or a combination of
the two.” AR478. NPS also announced that one of the
events would be used for the West entrance rather than the
South entrance. AR479. As Plaintiff was not a current
concessioner, Plaintiff did not receive a notification of
NPS's decision to reallocate the unused transportation
events.
In
response, various concessioners requested that they be
considered in awarding the unused transportation events.
AR482, AR519, AR525. The number of lottery entries was
determined by the number of contracts each concessioner
already held. AR479. In November 2016, Scenic Safaris was
selected through the lottery process to receive the unused
transportation event for the South entrance. AR532. The
lottery process was apparently conducted by pulling numbers
out of a hat. AR530, AR532.
In
December 2016, NPS issued an addendum to Scenic Safari's
operating plan to add one transportation event for the
2016-2017 winter season. AR577-79. But, Scenic Safari was
notified that if NPS continued the experimental service,
Scenic Safari would continue operating the transportation
event. AR576. The addendum stated that the transportation
event was to be used primarily for one-way shuttle services
between the South entrance and Old Faithful. AR578.
In July
2017 and September 2017, Plaintiff contacted NPS regarding
the unused transportation events from the terminated Four
Seasons contract. And in October 2017, NPS contacted
Plaintiff declining to award Plaintiff a concession contract.
Compl., ECF No. 1, Dec. of Frank Hubert Chapman II, ¶
12.
In
December 2017, Plaintiff filed this lawsuit challenging the
method by which NPS reallocated the unused transportation
events from the terminated Four Seasons contract. See
generally Compl., ECF No. 1. Plaintiff moved for a
Temporary Restraining Order, but the Court declined to grant
one. See generally Jan. 4, 2018 Order, ECF No. 9.
The parties subsequently moved for summary judgment.
II.
LEGAL STANDARD
Under
Rule 56(a) of the Federal Rules of Civil Procedure,
“[t]he court shall grant summary judgment if the movant
shows 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). However, “when a party
seeks review of agency action under the APA [before a
district court], 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 (D.C. Cir. 2001). Accordingly, “the
standard set forth in Rule 56[ ] does not apply because of
the limited role of a court in reviewing the administrative
record .... Summary judgment is [ ] the mechanism for
deciding whether as a matter of law the agency action is
supported by the administrative record and is otherwise
consistent with the APA standard of review.”
Southeast Conference v. Vilsack, 684 F.Supp.2d 135,
142 (D.D.C. 2010).
The APA
“sets forth the full extent of judicial authority to
review executive agency action for procedural
correctness.” Fed. Commc'n Comm'n v. Fox
Television Stations, Inc., 556 U.S. 502, 513 (2009). It
requires courts to “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). “This is a ‘narrow' standard of
review as courts defer to the agency's expertise.”
Ctr. for Food Safety v. Salazar, 898 F.Supp.2d 130,
138 (D.D.C. 2012) (quoting Motor Vehicle Mfrs. Ass'n
of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983)). However, an agency is still required to
“examine the relevant data and articulate a
satisfactory explanation for its action including a rational
connection between the facts found and the choice
made.” Motor Vehicle Mfrs. Ass'n, 463 U.S.
at 43 (internal quotation omitted). “Moreover, an
agency cannot ‘fail[ ] to consider an important aspect
of the problem' or ‘offer[ ] an explanation for its
decision that runs counter to the evidence' before
it.” Dist. Hosp. Partners, L.P. v. Burwell,
786 F.3d 46, 57 (D.C. Cir. 2015) (quoting Motor Vehicle
Mfrs. Ass'n, 463 U.S. at 43).
III.
PROCESS FOR GRANTING INJUNCTIVE RELIEF
In its
motion, Plaintiff asserts that it “seeks injunctive
relief whereby NPS awards it a concession contract for the
unused transportation event at the South Entrance for which
it was affirmatively prevented from competing because of
NPS's restricted lottery approach.” Pl.'s Mot.,
ECF No. 23, 13. Plaintiff alternatively “requests that
NPS be enjoined from continuing the ‘experiment'
for the upcoming season at the South Entrance and for the
remaining term of the affected contract, and that NPS be
directed to acquire the new services at the South Entrance
through the required public competition process such that
Plaintiff has a fair opportunity to compete.”
Id. at 13-14. Plaintiff claims that the appropriate
test for granting such relief is whether it has established
that it “will ‘succeed on the merits, that [it]
is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in
[its] favor, and that an injunction is in the public
interest.'” Id. at 13 (quoting Winter
v. Nat'l Res. Def. Council, 555 U.S. 7, 20 (2008)).
Plaintiff
has misstated the standard for granting injunctive relief at
this stage in the litigation. Plaintiff has filed a motion
for summary judgment on the administrative record. Despite
this, Plaintiff organizes its motion for summary judgment
around the standard for granting a preliminary injunction.
And, as Plaintiff has already been denied a temporary
restraining order and is now moving for summary judgment on
the administrative record, this case is well past its
preliminary stage. See January 4, 2018 Order, ECF
No. 9 (denying a temporary restraining order). At the summary
judgment stage, the question is no longer whether or not
“Plaintiff will succeed on the merits.” Pl.'s
Mot., ECF No. 23, 14. At the summary judgment stage, the
question is whether or not Plaintiff has succeeded on the
merits. And, only if Plaintiff has succeeded on the merits
will the Court determine whether or not injunctive relief is
warranted.
Accordingly,
the Court will first decide whether or not Plaintiff prevails
on its motion for summary judgment on the administrative
record. If Plaintiff prevails on its motion for summary
judgment, then the Court will assess whether or not Plaintiff
is entitled to injunctive relief. And, Plaintiff is entitled
to injunctive relief only if Plaintiff shows
“‘(1) that it has suffered an irreparable injury;
(2) that remedies available at law, such as monetary damages,
are inadequate to compensate for that injury; (3) that,
considering the balance of hardships between the plaintiff
and defendant, a remedy in equity is warranted; and (4) that
the public interest would not be disserved by a permanent
injunction.'” Morgan Drexen, Inc. v. Consumer
Fin. Prot. Bureau, 785 F.3d 684, 694 (D.C. Cir. 2015)
(quoting eBay Inc. v. MercExchange, LLC, 547 U.S.
388, 391 (2006)).
IV.
NPS'S DECSION TO REALLOCATE THE TRANSPORTATION EVENT
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