Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

LLC v. Bernhardt

United States District Court, District of Columbia

February 5, 2019

HEART 6 RANCH, LLC, Plaintiff
v.
DAVID BERNHARDT, et al.,[1] Defendants

          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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.