Maule-Ffinch et al v. Connor et al, No. 2:2007cv00454 - Document 142 (D. Ariz. 2009)

Court Description: ORDER denying as moot 87 Motion to Supplement; denying 88 Motion for Summary Judgment; denying as moot 106 Motion to Strike ; denying as moot 107 Motion to Strike ; granting 110 Motion for Summary Judgment by "Marina Partners"; gr anting 114 Cross-Motion for Summary Judgment by "Federal Defendants" on Count One of the First Amended Complaint; denying as moot 124 Motion to Strike. A Joint Proposed Pretrial Order to be lodged by 4/20/09. Setting Pretrial Conferenc e for 5/11/09 at 10:30 am in Courtroom 606, Sixth Floor, Sandra Day O'Connor United States Courthouse, 401 West Washington Street, Phoenix, Arizona. A trial date and any other necessary deadlines will be set at the Pretrial Conference. Signed by Judge Robert C Broomfield on 3/20/09. (DMT, )

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Maule-Ffinch et al v. Connor et al 1 Doc. 142 wo 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Protect Lake Pleasant, LLC, an Arizona limited liability company; David Maule-Ffinch; Michael Viscuis; and Pensus Group, L.L.C., an Arizona limited liability company, ) ) ) ) ) ) ) Plaintiffs ) ) vs. ) ) J. William McDonald in his ) official capacity as ) Commissioner, United States ) ) Bureau of Reclamation;1 United States Bureau of ) Reclamation; an agency of ) the United States Department ) of Interior, and Ken Salazar, ) in his official capacity as ) Secretary, United States ) ) Department of Interior,2 ) Defendants ) No. CIV 07-0454-PHX-RCB O R D E R 23 24 25 26 27 1 In accordance with Fed. R. Civ. P. 25(d), which allows for substitution when, among other reasons, “a public officer who is a party in an official capacity . . . ceases to hold office while the action is pending[,]” the court hereby substitutes J. William McDonald, Acting Commissioner of the Bureau of Reclamation (“BOR”), for Robert W. Johnson, former BOR Commissioner. 2 As with Mr. Johnson, in accordance with Fed. R. Civ. P. 25(d), the court hereby substitutes Ken Salazar, current Secretary of the Interior, for Dirk Kempthorne, former Secretary of the Interior. 1 ) ) ) Lake Pleasant Marina Partners,) LLC, an Arizona limited ) liability company, ) ) ) Defendant-Intervenor) ______________________________) and 2 3 4 5 6 7 In count one of their First Amended Complaint (“FAC”) 8 plaintiffs allege that the United States Bureau of Reclamation 9 (“BOR”),3 by authorizing Maricopa County (“the County”) to proceed 10 with the development and construction of the Scorpion Bay Marina & 11 Yacht Club at Lake Pleasant Regional Park (“LPRP”), violated the 12 Federal Property and Administrative Services Act of 1949 (“FPASA”), 13 as well as various related regulations and BOR Directives and 14 Standards (“D&Ss”) and policies. 15 Currently pending before the court is plaintiffs’ motion for 16 partial summary judgment pursuant to Fed. R. Civ. P. 56 on count 17 one (doc. 88). 18 114). 19 (“Partners”) filed a “counter motion” for partial summary judgment 20 also directed to count one (doc. 110). 21 BOR (doc. 106); (“Partners”) (doc. 107); and plaintiffs (doc. 124) 22 are also pending. 23 thirteen volume administrative record (doc. 87).4 BOR is cross-moving for that same relief (doc. Defendant/intervenor Lake Pleasant Marina Partners, LLC, Three motions to strike, by Finally, plaintiffs are moving to supplement the 24 25 26 27 3 Hereinafter BOR shall be read as including the individual federal defendants as well, Messrs. McDonald and Salazar. 4 As Fed. R. Civ. P. 78(b) allows, the court will decide these motions without oral argument and thus denies the parties’ requests in that regard. The court is quite familiar with this litigation and the parties provided fairly comprehensive briefs on the issues. Consequently, oral argument will not aid the -2- 1 Background 2 This recitation of facts is for the limited purpose of 3 providing a factual overview of plaintiffs’ FPASA claims in count 4 one of the FAC. 5 necessary to resolve discrete issues, such as jurisdiction, which 6 these motions raise. These facts will be further developed herein as 7 Two agreements figure prominently in plaintiffs’ FPASA claims - 8 the 1990 “Recreational Management Agreement” (“RMA”) between BOR and 9 the County and the “Use Management Agreement” (“UMA”) between the 10 County and Partners. 11 agreement, the RMA, is the Federal Water Project Recreation Act. 12 Admin. Rec., Vol. 1 at 1. 13 County as its “exclusive recreational management contractor[.]” 14 at 4, Art. 2(a). 15 “existing park facilities and related property interests” to BOR. 16 Id. at 6, Art. 4. 17 forms. 18 granted to the County “the authority . . . to enter into third party 19 concession agreements[,]” such as the “Use Management Agreement” 20 (“UMA”) entered into between the County and Partners for the LPRP 21 marina. 22 consideration was BOR’s $2,500,000.00 payment to the County to “be 23 utilized only in connection with the recreational development of the 24 LPRP wherein [BOR] has Federal land management responsibility.” The statutory authority for the first In that RMA, BOR “designat[ed]” the Id. As part of that Agreement, the County transferred The consideration for that transfer took several As part of that consideration, with BOR’s “approval[,]” BOR See id. at 7, Art. 4(c)(4). Another aspect of that Id. 25 26 27 court’s decisional process, and its denial will not result in prejudice to any party. See Lake at Las Vegas Investors Group, Inc. v. Pac. Dev. Malibu Corp., 933 F.2d 724, 729 (9th Cir. 1991) (no prejudice in refusing to grant oral argument “[w]hen a party has [had] an adequate opportunity to provide the trial court with evidence and a memorandum of law[]”). -3- 1 2 at 7, Art. 4(c)(6). Article 13 of the RMA delineated the circumstances under which 3 the County could “enter into direct agreements with third parties to 4 operate concession attractions, developments or services on the 5 LPRP[.]” Id. at 15, Art. 13(a). 6 “agree[d] to provide to [BOR] for its approval, a copy of each third 7 party concession agreement involving a pre-approved use as set 8 forth” later in Article 13. 9 subject of the UMA is included in that “pre-approved list.” Id. In that Article, the County The marina complex which was the See id. 10 At 16, Art. 13(d)(3);(d)(4); and (d)(6). 11 approval,” the RMA also provided that the County “may consider” the 12 marina complex, among other items, to be “pre-approved for 13 negotiation purposes[.]” 14 “Subject to final [BOR] Id. In 2005 the County issued a Request for Proposal (“RFP”) for 15 the Scorpion Bay Marina. 16 entitled “Competition, Non-Collusion & Conflict of Interest[.]” PSOF 17 (doc. 89)5, exh. 29 thereto at BORFOAI00315. 18 clause as “anti-competitive,” whereas defendants view it as “pro- 19 competition.” 20 party possessing any commercial interest adjacent to or near Lake 21 Pleasant from bidding on that project. 22 Group (“Pensus”) operates a marina adjacent to the Lake, it claims 23 that in light of section 6.8, it could not bid on the project. That RFP contained a clause, section 6.8, Plaintiffs view that Regardless, essentially section 6.8 precluded any Because plaintiff Pensus In 24 5 25 26 27 These motions present a procedural conundrum. On the one hand, defendants are seeking to strike nearly all of the exhibits included with plaintiff’s statement of facts (“PSOF”), while at the same time, they are arguing lack of jurisdiction. Plainly, if the court is without jurisdiction, it would not have the power to rule on the motions to strike or plaintiffs’ motion to supplement. Because the defendants are not moving to strike exhibits 29 (the 2005 RFP) and 30 (the Proposed UMA), the court will consider those documents, which, in any event, evidently are part of the Administrative Record. -4- 1 response to the 2005 RFP, Partners submitted the only bid for the 2 Scorpion Bay project. 3 As the next step in the process, the County prepared a Proposed 4 (“UMA”) for Partners. 5 “varied significantly from the terms contained in the 2005 RFP.” 6 FAC (doc. 4) at 11, ¶ 43. 7 provisions which were not in the Proposed UMA. 8 plaintiffs, the 2005 RFP included an encumbrance provision 9 prohibiting the concessionaire from mortgaging or encumbering marina Plaintiffs allege that the Proposed UMA In particular, the 2005 RFP included two According to 10 improvements, whereas the Proposed UMA did not include such a 11 provision. 12 that the concessionaire transfer all marina improvements to the 13 County upon termination of any contract entered into pursuant to 14 that RFP, PSOF (doc. 89), exh. 29 thereto at 5, § 2.0, whereas the 15 Proposed UMA omitted that reversion provision. 16 fact that the 2005 RFP did not give the concessionaire a “right of 17 first refusal” with respect to 30 additional acres of land, the 18 Proposed UMA did. 19 as tendered by the County. 20 turn, the County entered into a Final UMA with Partners for the 21 development and operation of Scorpion Bay Marina. 22 000163-000210. 23 Furthermore, the 2005 RFP included a provision mandating Then, despite the Subsequently, the BOR approved the Proposed UMA Admin. Rec., Vol. 1 at 000162. In See id. Vol. 1 at Broadly stated, based upon the foregoing plaintiffs contend 24 that the BOR violated the FPASA by not ensuring “full and open 25 competition” with respect to the Scorpion Bay Marina bidding 26 process. 27 allowed the County to include section 6.8 in the 2005 RFP. For one thing, plaintiffs allege that the BOR improperly -5- The 1 result, according to plaintiffs was a “lack of competition for the 2 2005 RFP” and a concomitant “contract price substantially below 3 market value.” 4 Pl. Mot. (doc. 88) at 16:6-7. Second, plaintiffs contend that the BOR improperly allowed the 5 County to make material changes to the UMA. 6 change is that the encumbrance and reversion provisions, mentioned 7 above, which had been in the 2005 RFP were not included in the Final 8 UMA. 9 that the Final UMA included a right of first refusal which did not 10 11 One purported material Another improper material change, according to plaintiffs, is appear anywhere in the 2005 RFP. The underlying theory of plaintiffs’ FPASA claims is that the 12 “BOR has independent oversight responsibilities” with respect to 13 non-federal partners, such as the County. 14 upon that theory, the FAC sweepingly alleges that “BOR’s failure to 15 ensure [the] County’s compliance with applicable law, regulation, 16 and policy was arbitrary and capricious, an abuse of discretion, and 17 a violation of governing provisions of federal law.” 18 at 18, ¶ 82. 19 that “BOR’s approval of the Proposed UMA, which was based on the 20 illegal 2005 RFP, was also arbitrary and capricious, an abuse of 21 discretion, and a violation of governing provisions of federal law.” 22 Id. at 18, ¶ 83. 23 24 25 See id. at 17:9. Based FAC (doc. 4) In similarly broad language, plaintiffs further allege Plaintiffs conclude count one by alleging: The consequences of BOR’s unlawful action are, among others, a prima facie violation of federal procurement law that excluded Plaintiffs Maule-Ffinch and Pensus from responding to the 2005 RFP for which they were highly and uniquely qualified and known to be a financially viable candidate. 26 27 Id. at 18, ¶ 84. In their motion for partial summary judgment -6- 1 plaintiffs are seeking a declaration that the Final UMA is “illegal 2 and void ab initio. 3 Pl. Mot. (doc. 88) at 1. Succinctly stated, BOR’s response is that for the most part, in 4 count one plaintiffs are focusing on the County’s actions, and 5 obviously the County is not a party to this lawsuit. 6 which is the subject of count one, BOR stresses that it was “neither 7 authorized by nor subject to [BOR’s] approval.” 8 113) at 25:22. 9 approval, BOR asserts that it is entitled to summary judgment as to As for the RFP BOR Resp. (doc. Turning to the UMA, over which BOR did have final 10 count one because its decision to approve that agreement “was not 11 arbitrary, capricious or otherwise not in accordance with the law.” 12 Id. at 9. 13 As the private entity which ultimately was awarded the UMA for 14 the marina, Partners’ interests differ from those of the BOR, and 15 their arguments herein reflect those differences. 16 focusing on plaintiffs’ interactions with BOR, Partners focuses on 17 plaintiffs dealings with the County. 18 Pensus failed to exhaust available County administrative remedies. 19 Similarly, Partners maintains that “the Arizona Court of Appeals has 20 already found that the County followed local procurement 21 procedures[.]” Part. Mot. (doc. 110) at 4:16-17. 22 assert that jurisdiction properly lies in the Court of Federal 23 Claims, not this district court. 24 are entitled to summary judgment as to count one because plaintiffs 25 “failed to object to the County’s 2005 RFP in a timely manner.” 26 at 6:3-4. 27 judgment motion. Instead of It first argues that plaintiff Next, Partners Finally, Partners claims that they Id. Importantly, Partners expressly joins in BOR’s summary Id. at 1:9-11. -7- 1 2 3 Discussion I. Jurisdiction In responding to plaintiffs’ motion for partial summary 4 judgment and in cross-moving for partial summary judgment, BOR 5 strongly implies that subject matter jurisdiction is lacking here. 6 Similarly, presupposing that count one is a “bid protest,” Partners 7 assert jurisdiction lies with the Court of Federal Claims - not with 8 this court. 9 Part. Mot.6 (doc. 110) at 5:21. Lack of subject matter jurisdiction is not the first argument 10 which defendants advance on these motions. 11 established principle, that “[f]ederal courts must determine that 12 they have jurisdiction before proceeding to the merits[,]” the court 13 will address this issue first. 14 ___, 127 S.Ct. 1194, 1196, 167 L.Ed.2d 29 (2007) (citation omitted). 15 Indeed, the court must proceed in this way given the Supreme Court’s 16 admonition against “‘assuming’ jurisdiction for the purpose of 17 deciding the merits - the ‘doctrine of hypothetical jurisdiction.’” 18 See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 19 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998) (citation omitted). 20 when it has satisfied itself that it has subject matter jurisdiction 21 can the court consider the parties’ respective summary judgment 22 motions, and the other pending motions. 23 “‘[w]ithout jurisdiction the court cannot proceed at all in any 24 cause.” 25 264 (1868)). 26 when it ceases to exist, the only function remaining to the court is Consistent with the See Lance v. Coffman, ___ U.S. ___, Only That is so because Id. (quoting Ex parte McCardle, 7 Wall. 506, 514, 19 L.Ed. “‘Jurisdiction is the power to declare the law, and 27 6 Although styled as a motion for “summary judgment,” Part. Mot. (Doc. 110) at 1:2, like plaintiffs, Partners are seeking only partial summary judgment as their motion is directed only at count one. -8- 1 that of announcing the fact and dismissing the cause.’” Id. (quoting 2 McCardle, 7 Wall. at 514). 3 principles, Rule 12(h)(3) mandates that “[w]henever it appears by 4 suggestion of the parties or otherwise that the court lacks 5 jurisdiction of the subject matter, the court shall dismiss the 6 action.” 7 Indicative of those well-settled Fed. R. Civ. P. 12(h)(3) (emphasis added). The pending summary judgment motions pertain only to count one, 8 wherein plaintiffs allege violations of, inter alia, the FPASA. 9 Plaintiffs do not invoke jurisdiction under that Act, however. 10 Rather, they list three separate jurisdictional bases: (1) 28 U.S.C. 11 § 1331 (federal question); (2) 5 U.S.C. §§ 701-706 (the 12 Administrative Procedure Act) (“APA”); and (3) 28 U.S.C. § 1361 (the 13 mandamus statute). 14 declaratory relief pursuant to 28 U.S.C. § 2201 and injunctive 15 relief pursuant to 28 U.S.C. § 2202, but the FAC does not rely upon 16 either of those statutes as a jurisdictional basis. 17 FAC (doc. 4) at 2, ¶ 2. Plaintiffs are seeking See id. Defendants’ initial subject matter jurisdiction challenges were 18 rather cursory. 19 Declaratory Judgment Act nor the mandamus statute confer 20 jurisdiction upon this court. 21 are not relying upon either of those first two statutes as a basis 22 for jurisdiction herein. 23 that “[j]urisdiction must come from a source other than the APA.” 24 BOR Resp.(doc. 113) at 12:12-13 (citations omitted). 25 reason, and disregarding the possibility of federal question 26 jurisdiction, the federal defendants raise the specter that subject 27 matter jurisdiction is lacking here. The BOR contends that neither the FPASA, the Of course, as just shown, plaintiffs More to the point, BOR accurately states -9- For that 1 Partners challenges subject matter jurisdiction in a different way.7 2 Implying without any analysis or discussion that count one is 3 actually a “bid protest,” Partners asserts that jurisdiction lies 4 with the Court of Federal Claims pursuant to the Tucker Act, as 5 amended by the Administrative Disputes Resolution Act (“ADRA”), 28 6 U.S.C. § 1491(b). 7 Partners properly seek “dismiss[al][,]” id.. at 6:2, as opposed to 8 summary judgment, for lack of subject matter jurisdiction. 9 California Save Our Streams Council v. Yeutter, 887 F.2d 908, 913 Part. Mot. (doc. 110) at 5:22. Accordingly, See 10 (9th Cir. 1989) (citation omitted) (“Summary judgment is an 11 inappropriate disposition when the district court lacks [subject 12 matter] jurisdiction.”); see also Smith v. United States, 1999 WL 13 33318819, at *1 (D.Ariz. March 11, 1999) (“Although Defendant raises 14 the issue of subject matter jurisdiction in a motion for summary 15 judgment, the court will treat the motion as one suggesting 16 dismissal based on lack of subject matter jurisdiction because the 17 court cannot enter judgment but rather only dismiss the complaint if 18 it lacks subject matter jurisdiction.”), aff’d, 1999 WL 793695 (9th 19 Cir. 1999). 20 21 Plaintiffs’ first response is procedural. Plaintiffs contend that because the defendants admitted jurisdiction in their answers, 22 23 24 25 26 27 7 After stating the general premise that “[t]he Federal Court of Claims has . . . Jurisdiction,” Partners claim that “venue” is not “proper” in this court. Part. Mot. (doc. 110) at 5:21. “‘[V]enue is not jurisdictional[,]’” however. Morales v. Willett, 417 F.Supp.2d 1141, 1142 (C.D.Cal. 2006) (quoting Libby, McNeill & Libby v. City National Bank, 592 F.2d 504, 510 (9th Cir. 1978)). Indeed, “‘jurisdiction must be first found over the subject matter and the person before one reaches venue[.]’” Park v. Cardsystems Solutions, Inc., 2006 WL 2917604, at *2 (N.D.Cal. Oct. 11, 2006) (quoting Bookout v. Beck, 354 F.2d 823, 825 (9th Cir. 1965)). Thus, because venue and subject matter jurisdiction are two distinct concepts, they cannot be used interchangeably. The court construes Partners’ argument as raising strictly a jurisdictional challenge. - 10 - 1 they are now “bound” by those “admissions[.]” See Pl. Resp. (doc. 2 133) at 9:12 (citation omitted). 3 jurisdiction in their respective answers. 4 at 1-2, ¶ 2; and BOR Ans. (doc. 42) at 2, ¶ 2. 5 however, those “admissions” are insufficient to confer subject 6 matter jurisdiction upon this court, assuming it is otherwise 7 lacking. Defendants did expressly admit See Part. Ans. (doc. 14) As explained below, 8 It is beyond peradventure that “‘[t]he jurisdiction of the 9 federal courts . . . is a grant of authority to them by Congress and 10 thus beyond the scope of litigants to confer.’” 11 Guar. Co. v. Lee Investments LLC, 551 F.Supp.2d 1069, 1079 (E.D.Cal. 12 2008) (quoting Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 13 165, 167, 60 S.Ct. 153, 84 L.Ed. 167 (1939)). 14 defendants cannot agree to or admit subject matter jurisdiction 15 absent a Congressional grant of jurisdiction to this court. 16 notwithstanding defendants’ admissions, “lack of subject matter 17 jurisdiction is never waived[,]” and indeed “may be raised by the 18 court sua sponte at any juncture.” 19 Corp., 2008 WL 615886, at *1 (D.Ariz. March 3, 2008) (citing 20 Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 21 594-595 (9th Cir. 1996)). 22 argument that defendants cannot challenge jurisdiction because of 23 the “admissions” in their answers, is wholly without merit. U.S. Fidelity & In other words, Second, Harrison v. Howmedica Osteonics In light of the foregoing, plaintiffs’ 24 Plaintiff’s second response to defendants’ jurisdictional 25 challenges is that the Tucker Act “only applies to claims for money 26 damages[,]” and they are seeking declaratory and injunctive relief. 27 Pl. Resp. (doc. 122) at 9:18-19 (citations omitted). - 11 - Hence, 1 plaintiffs reason, subject matter jurisdiction properly lies in this 2 district court. 3 “[t]he Court of Federal Claims ‘does not have the authority to issue 4 a declaratory judgment.’” 5 716 F.Supp. 1567, 1569 (D.Ariz. 1988)). 6 Indeed, plaintiffs go so far as to state that Id. at 9:22-23 (quoting Justice v. Lyng, Plaintiffs are conveniently overlooking the fact, however, that 7 the Tucker Act was amended by ADRA in 1996. 8 jurisdiction of the Court of Federal Claims, as well as expressly 9 authorizing that Court to “award any relief that [it] considers The ADRA enlarged the 10 proper, including declaratory and injunctive relief[.]” 28 U.S.C. 11 § 1491(b)(2) (West 2006) (emphasis added). 12 circumvent the jurisdiction of the Court of Federal Claims based 13 upon the nature of the relief which they are seeking. 14 Systems Technology, Inc. v. Barrito, 2005 WL 3211394, at *6 (D.D.C. 15 Nov. 1, 2005) (finding that because section 1491(b)(1) of the ADRA 16 allows for awards of declaratory and injunctive relief, the fact 17 that plaintiff sought only such relief did not provide a basis for 18 district court jurisdiction). 19 amendment means that plaintiffs’ reliance upon cases such as 20 Justice, decided well before that enactment, is misplaced. 21 Thus, plaintiffs cannot See Advanced Moreover, the Tucker Act’s 1996 The APA is the statutory basis for plaintiffs’ claim that the 22 BOR’s alleged violations of the FPASA are subject to judicial 23 review. 24 in a court of the United States seeking relief other than money 25 damages . . . shall not be dismissed nor relief therein be denied on 26 the ground that it is against the United States.” 27 (West 2007). The APA provides that in most circumstances, “[a]n action 5 U.S.C. § 702 Citing to the seminal case of Califano v. Sanders, 430 - 12 - 1 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), the BOR accurately 2 states that the APA does not provide an independent jurisdictional 3 basis for reviewing agency actions. 4 Plaintiffs are also relying upon the federal question statute, 5 28 U.S.C. § 1331, as a jurisdictional basis though. 6 grants district courts “original jurisdiction of all civil actions 7 arising under the Constitution, laws, or treaties of the United 8 States.” 9 point out, the Califano Court explained that section 1331 “confer[s] 28 U.S.C. § 1331 (West 2006). Section 1331 As plaintiffs are quick to 10 jurisdiction on federal courts to review agency action, regardless 11 of whether the APA of its own force may serve as a jurisdictional 12 predicate.” 13 added); see also ANA Intern., Inc. v. Way, 393 F.3d 886, 890 (9th 14 Cir. 2004) (citation omitted) (“The default rule is that agency 15 actions are reviewable under federal question jurisdiction, pursuant 16 to 28 U.S.C. . . . § 1331 and reinforced by the enactment of the 17 . . . APA, even if no statute specifically authorizes judicial 18 review.”) 19 reviewable under federal question jurisdiction, pursuant to 28 20 U.S.C. § 1331,” the Ninth Circuit in Spencer Enterprises, Inc. v. 21 U.S., 345 F.3d 683 (9th Cir. 2003), offered the following rationale: 22 23 24 25 26 27 Califano, 430 U.S. at 105; 97 S.Ct. at 984 (emphasis After “not[ing] that agency actions are generally Even if no statute specifically provides that an agency’s decisions are subject to judicial review, the Supreme Court customarily refuse[s] to treat such silence as a denial of authority to [an] aggrieved person to seek appropriate relief in the federal court, . . . and this custom has been reinforced by the enactment of the [APA], which embodies the basic presumption of judicial review to one suffering legal wrong because of agency action, or adversely affected - 13 - 1 or aggrieved by agency action within the meaning of a relevant statute. 2 3 Id. at 687-88 (internal quotation marks and citations omitted). 4 foregoing convinces the court that it has subject matter 5 jurisdiction under section 1331, “reinforced by” the APA, see ANA 6 Intern., 393 F.3d at 890, to consider whether BOR acted arbitrarily, 7 capriciously and abused its discretion as the FAC alleges. 8 The court’s jurisdictional analysis cannot end here though. 9 That is because the claims herein are against the United States, The 10 i.e., the BOR. 11 suit unless it has expressly waived such immunity and consented to 12 be sued.” 13 (internal quotation marks and citation omitted). 14 cannot be implied, but must be unequivocally expressed.” 15 (internal quotation marks and citation omitted). 16 if jurisdiction is proper under section 1331, still, there must be 17 an explicit waiver of sovereign immunity. 18 quotation marks and citation omitted) (“Where a suit has not been 19 consented to by the United States, dismissal of the action is 20 required . . . [because] the existence of such consent is a 21 prerequisite to jurisdiction.”) 22 sovereign immunity issue and BOR only alludes to it. 23 waiver of sovereign immunity is an essential part of the court’s 24 subject matter jurisdiction in this case, however, the court must 25 carefully consider that issue. As a sovereign the United States “is immune from McGuire v. U.S., 550 F.3d 903, 910 (9th Cir. 2008) “Such waiver Id. Accordingly, even See id. (internal Plaintiffs did not consider this Because a 26 A. 27 Section 1331 is an undeniably broad jurisdictional grant, but Waiver of Sovereign Immunity - 14 - 1 in and of itself that statute is not a waiver of sovereign immunity. 2 Pit River Home and Agr. Co-op Ass’n v. U.S., 30 F.3d 1088, 1098 n.5 3 (9th Cir. 1994) (citations omitted); see also Hughes v. U.S., 953 4 F.2d 531, 539 n. 5 (9th Cir. 1992) (citations omitted). 5 Consequently, this court has subject matter jurisdiction under 6 section 1331 only if there is separate statutory waiver of sovereign 7 immunity, which here means returning to the APA. 8 The APA contains a limited waiver of sovereign immunity. 9 “[S]ection 702 of the APA waives sovereign immunity for Plaintiffs’ 10 claims if (1) the claims are not for money damages; (2) an adequate 11 remedy for the claims is not available elsewhere; and (3) the claims 12 do not seek relief expressly or impliedly forbidden by another 13 statute.” 14 F.Supp.2d 1292, 1296 (E.D.Wash. 2008) (citing Tucson Airport 15 Authority v. General Dynamics Corp., 136 F.3d 641, 644 (9th cir. 16 1998)). 17 test, as more fully explained below. Grant County Black Sands Irr. Dist. v. U.S., 539 Plaintiffs’ claims herein satisfy all three prongs of this 18 1. 19 Plaintiffs are not seeking monetary relief in this case; they “Money Damages” 20 are seeking declaratory and injunctive relief, as noted earlier. 21 Consequently, there is no dispute that the first element of the 22 APA’s limited waiver of sovereign immunity is met here. 23 2. 24 Partners maintains that the Tucker Act as amended by the ADRA Adequate Remedy Not Available Elsewhere 25 vests exclusive jurisdiction in that Court. 26 sovereign immunity, if an adequate remedy is available in the Court 27 of Federal Claims under the ADRA, then plaintiffs would not be - 15 - Framed in terms of 1 entitled to rely upon the APA’s limited waiver of sovereign 2 immunity. 3 Agriculture Forest Service, 2004 WL 5066232, at *4 (D.Ariz. Aug. 13, 4 2004) (because plaintiff “alleges the violation of a statute or 5 regulation in connection with a proposed procurement, under the 6 ADRA, the Court of Federal Claims ha[d] exclusive jurisdiction[,]” 7 thus “preempt[ing]” the court’s § 1331 jurisdiction and the APA’s 8 waiver of sovereign immunity), aff’d in part, rev’d in part on other 9 grounds without pub’d opinion, 209 Fed. Appx. 625 (9th Cir. 2006). 10 Conversely, if an adequate remedy is not available in the Court of 11 Federal Claims, then the second element necessary to establish a 12 waiver of sovereign immunity under the APA is present here. 13 See Fire-Trol Holdings L.L.C. v. U.S. Dep’t of Whether an “adequate remedy is available” in the Court of 14 Federal Claims necessarily implicates that Court’s jurisdiction in 15 the first instance. 16 that the United States Court of Federal Claims: 17 Section 1491(b)(1) provides in relevant part [S]hall have jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement. 18 19 20 21 22 28 U.S.C. § 1491(b)(1) (West. 2006).8 23 parties vigorously dispute whether the UMA or the RMA are 24 “procurement” contracts. In arguing the merits, the They did not specifically address the 25 26 27 8 Consideration of whether this action comes within the scope of the ADRA is imperative for the additional reason that “where a case falls under Tucker Act [ADRA] jurisdiction, federal question jurisdiction[,]” which plaintiffs herein are invoking, “cannot serve as an alternative basis for jurisdiction.” Marceau v. Blackfeet Housing Authority, 455 F.3d 974, 986 n. 6 (9th Cir. 2006). - 16 - 1 “interested party” or “Federal agency” aspects of section 2 1491(b)(1). 3 all three factors. For the sake of completeness, the court will address 4 5 a. “Interested Party” A concrete definition for “interested party” under section 6 1491(b)(1) has “yet [to be] precisely . . . delineated[.]” Phoenix 7 Air Group, Inc. v. United States, 46 Fed.Cl. 90, 102 (Fed. Cl.), 8 appeal dismissed per stipulation, 243 F.3d 555 (Fed. Cir. 2000). 9 “Without an explicit definition, previous Court of Federal Claims 10 decisions have found that, to be an ‘interested party’ under the 11 Tucker Act, a plaintiff must stand in some connection to the 12 procurement, and it must have an economic interest in it.” 13 (internal quotation marks and citation omitted). 14 interpretation, it is possible to find that plaintiffs Maule-Ffinch 15 and Pensus (the only plaintiffs which count one names), are 16 “interested parties” for purposes of section 1491(b)(1). 17 “in some connection to the procurement” in that, as a marina 18 developer and operator in the area, they wanted to respond to the 19 2005 RFP (although they believed that section 6.8 precluded them 20 from so doing). 21 the “procurement,” because an award of the UMA to them, rather than 22 to Partners, obviously would have inured to their financial benefit. 23 Id. Given this broad They stood Those plaintiffs also had an economic interest in Under the terms of the Pleasant Harbor lease, Partners 24 maintains that plaintiffs were not qualified bidders because 25 supposedly that lease prohibited plaintiffs from basically operating 26 a competing marina, such as Scorpion Bay. 27 that Partners selectively quoted from that lease. - 17 - Plaintiffs are correct Immediately 1 following that seemingly prohibitive language, the lease lists the 2 “conditions” under which the lessor was required to permit 3 plaintiffs to engage in a competing marina business. 4 (doc. 26) at 1-2 (citation omitted). 5 juncture to become mired down in the discrete issue of whether that 6 lease barred plaintiffs from bidding on the 2005 RFP, especially 7 because Partners did not raise that issue in the context of section 8 1491(b)(1). 9 Pl. Resp. There is no need at this For present purposes, the court is hesitant to adopt a strict 10 and narrow view of an “interested party” under that statute. 11 hesitancy stems in part from how broadly the Court of Federal Claims 12 has construed “interested party.” 13 United States, 2009 WL 426462 (Fed. Cl. Feb. 18, 2009), is 14 illustrative. 15 protest the agency action, even though there was no solicitation by 16 the agency for which they could compete.” 17 omitted). 18 the “interested party” element of section 1491(b)(1). 19 court finds that plaintiffs Maule-Ffinch and Pensus are “interested 20 parties” within the meaning of that statute. 21 22 This L-3Communications EOTech, Inc. v. There the court “held that protestors had standing to Id. at *4 (citation That holding is representative of the broad parameters of b. Thus, the “Federal Agency” The next jurisdictional prerequisite under the ADRA is a 23 showing that plaintiff “competed in a government-sponsored 24 solicitation, which was issued by a federal agency and not a private 25 party.” 26 That is because the Court of Federal Claims “has no authority over 27 non-Federal entities.” Blue Water Envt’l, Inc. v. U.S., 60 Fed.Cl. 48, 51 (2004). Id. (internal quotation marks and citation - 18 - 1 omitted). 2 as an ‘agent’ for a federal entity[,]” jurisdiction under 3 § 1491(b)(1) of the ADRA is lacking. 4 Thus, unless the soliciting entity is federal or “acting See id. The ADRA does not define “federal agency.” Novell, Inc. v. 5 U.S., 46 Fed.Cl. 601, 606 n. 3 (2001). 6 settled that for purposes of determining Tucker Act jurisdiction, 7 the definition of ‘agency’ in 28 U.S.C. § 451 is controlling.” 8 Water Envt’l, 60 Fed.Cl. at 51. 9 “‘includes any department, independent establishment, commission, 10 administration, authority, board or bureau of the United States or 11 any corporation in which the United States has a proprietary 12 interest unless context shows that such term was intended to be used 13 in a more limited sense.’” Id. at 51-52 (quoting 28 U.S.C. § 451). 14 However, it “[i]s is well- Blue That statute’s definition of agency In count one, plaintiffs allege a “prima face violation of 15 federal procurement law” arising from BOR’s “approval of the 16 Proposed UMA, which was based on the illegal 2005 RFP.” 17 4) at 18, ¶¶ 83 and 84. 18 “violated the principle of full and open competition reflected in 19 federal procurement law” in several ways. 20 18, ¶ 83. 21 Therefore, on the face of it, the underlying solicitation which 22 forms the basis for count one was not issued by a federal agency 23 under section 451's definition. FAC (doc. That RFP allegedly was “illegal” because it Id. at 17, ¶ 80; and at The 2005 RFP was issued by Maricopa County, however. 24 Nonetheless, the court must consider whether the County was 25 “acting as ‘agent’ for a federal entity[,]” i.e. so as to confer 26 “Federal agency” status upon the County within the meaning of 27 section 1441(b)(1). In Blue Water Envt’l, the court discussed two - 19 - 1 possible theories which could render a non-federal entity a “Federal 2 agency” with the meaning of that statute – “day-to-day supervision” 3 and “purchasing agent[.]” 4 53. 5 Brookhaven Science Associates (“BSA”), which operated a national 6 laboratory owned by the Department of Energy (“DOE”) pursuant to a 7 contract with DOE, was not a “Federal agency” under either theory. 8 Thus, it dismissed the complaint for lack of subject matter 9 jurisdiction. Blue Water Envt’l, 60 Fed. Cl. at 51 and The court in Blue Water Envt’l held that a private contractor, 10 BSA, the private contractor in Blue Water Envt’l, issued a 11 series of RFPs which ultimately resulted in a contract between it 12 and another private entity to perform remediation at the laboratory 13 site. 14 claiming that BSA “illegally, arbitrarily and capriciously . . . 15 review[ed] the proposals under the [RFP], and violated the law by 16 awarding the [clean-up] contract” to another entity. 17 (internal quotation marks omitted). 18 A “disappointed proposer[]” filed suit against the DOE Id. at 50 On its motion to dismiss for lack of subject matter 19 jurisdiction under § 1491(b)(1), the DOE argued that BSA was not a 20 “Federal agency” within the meaning of that statute. 21 attempted to establish that the BSA was a “Federal agency” because 22 it was “managing and operating a government facility under the day- 23 to-day supervision of the Federal Government.” 24 than examining that broader alleged supervision, the court narrowed 25 its inquiry to whether “the BSA was an ‘agency’ under a day-to-day 26 supervision theory in connection with the subject procurement.” 27 Finding that “DOE was removed from day-to-day supervision of the - 20 - Plaintiff Id. at 52. Rather Id. 1 subcontracting process at issue[,]” and that it did not “control[]” 2 that process, the court held that even if “plaintiff’s day-to-day 3 supervision theory [wa]s sufficient to establish ‘agency’ for 4 purposes of the Tucker Act, the plaintiff . . . failed to establish 5 that DOE supervised or directed the subcontracting process in th[at] 6 case.” 7 “Federal agency” as section 1491(b)(1) uses that phrase. 8 Id. at 52-53. Therefore, the court found that BSA was not a Several factors weighed in the Blue Water Envt’l court’s 9 determination that “BSA acted independently from DOE[.]” Id. at 52. 10 First, the court pointed to the absence of consultations between BSA 11 and DOE in terms of “selecting and awarding the subcontract” at 12 issue. 13 “participate[d] in the subcontracting process[.]” 14 did not “exercise any control over” that subcontracting process as 15 is evidenced in part by the fact that DOE “did not review the . . . 16 project solicitation or contract[.]” 17 omitted). 18 found that “DOE was removed from day-to-day supervision of the 19 subcontracting process[.]” Id. 20 that BSA was acting as a “federal entity for purposes of the subject 21 procurement.” 22 Id. Second, neither DOE’s contracting officer nor his staff Id. Third, DOE Id. (internal quotation marks In light of the foregoing, the Blue Water Envt’l court Thus, the court declined to find Id. The present case stands in sharp contrast to Blue Water Envt’l. 23 Far from “act[ing] independently” from BOR, BOR had significant 24 involvement in the RFP process which is the basis for count one. 25 See id. 26 earlier two RFPs were remarkably similar to the 2005 RFP, but unlike 27 that RFP, the earlier two RFPS never came to fruition. The 2005 RFP was preceded by RFPs in 2002 and 2004. - 21 - Those So even 1 though count one refers only to the 2005 RFP, the court cannot 2 ignore BOR’s involvement with the marina project over the years, up 3 through its approval of the Final UMA in 2005. 4 BOR was heavily involved in the decision-making process with 5 respect to the marina project, unlike the private contractor in Blue 6 Water Envt’l. 7 There was extensive interplay between the County and BOR as to the 8 2002 RFP. 9 BOR. The County did not undertake that process on its own. In 2002, the County submitted at least two draft RFPs to Admin. Rec., Vol. 1 at 000158. On May 13, 2002, BOR received 10 an RFP from the County for BOR’s “review and approval[.]” Id. 11 Although BOR approved the May 2002 RFP, on September 25, 2002, BOR 12 received from the County an “amended copy” of the 2002 RFP. 13 couple of months later, a BOR e-mail shows that BOR questioned 14 whether “the County changed something after our [BOR’s] approval.” 15 Id. 16 the language in Article 6.2 Competition, Non-Conclusion [sic] & 17 Conflict of Interest.” 18 Id. A That e-mail further states that BOR would “never have agreed to Id. Other internal BOR communications provide further indica that 19 unlike Blue Water Envt’l, BOR was not “removed from day-to-day 20 supervision” of the RFP process through the years. 21 Envt’l, 60 Fed. Cl. at 52. 22 BOR viewed the inclusion of the “competition” clause as problematic, 23 by March, 2003, BOR had somewhat allayed its concerns, noting that 24 it “and the County [would] have some control over rates[.]” Admin. 25 Re., Vol. 1 at 000159. 26 County “to use the services of a review by the National Marina 27 Operator’s president[.]” Id. See Blue Water Although it seems that from the outset Also in March, 2003, BOR “offer[ed]” to the - 22 - 1 Further evidence of the close working relationship between the 2 County and BOR with respect to the marina RFP process is the 3 County’s offer to “let [BOR] into the current process[.]” Id. 4 “declined” at that time, but “[if] the bidder [wa]s determined to be 5 valid, [BOR] [was to] be brought into th[e] process for further 6 questioning on his plans and proposal.” 7 BOR Id. (emphasis added). BOR’s involvement with the RFP process continued in the 8 following years. 9 an RFP, asking for BOR’s “review” and to “make any necessary On August 11, 2004, the County provided BOR with 10 comments on behalf of [BOR].” 11 express concern with inclusions of the 12 RFP. 13 because “not only” does it “violate the competitive bid process, but 14 it also eliminates the owners of commercial operations ‘near’ LPRP.” 15 Id. at 255.1. 16 contents of the recent RFP that [the County]” did not take “advice” 17 from BOR, among others. 18 Id. at 255.2. BOR continued to “Competition” clause in that BOR noted its “total disagree[ment]” with that language BOR further observed that it “appear[ed] from the Id. The court cannot stress enough that at this juncture, the 19 import of these BOR communications is not in how BOR purportedly 20 viewed the “competition” clause, but BOR’s awareness of it in the 21 first place. 22 clause shows that BOR was quite closely monitoring those RFPs. 23 Indeed the documents quoted above, taken together, give the distinct 24 impression that BOR and the County were engaged in somewhat of a 25 collaborative effort in terms of the RFP process. 26 provide BOR with a draft RRP; BOR would review it and comment and 27 return it to the County for revision. BOR’s awareness that the County was including that - 23 - The County would The process would continue 1 until BOR approved the RFP. 2 In addition to being part of the RFP process, in sharp contrast 3 to BSA which did not “exercise any control” over the subcontracting 4 process in Blue Water Envt’l, here, BOR exercised ultimate control. 5 The RMA vested the prerogative of final approval rights in the BOR. 6 Under the express terms of the RMA, agreements such as the UMA, were 7 “[s]ubject to the final approval of” BOR. 8 000016. 9 by BOR of the “right of final approval” over all agreements such as 10 the UMA. 11 Admin. Rec., Vol. 1 at Another provision of the RMA includes an express retention Id. at 00018. Additionally, the Administrative Record makes clear that BOR 12 actually exercised the approval authority which it had under the 13 RMA. 14 agreement in principle” to the UMA. 15 BOR advised the County that it had “reviewed [the County’s] most 16 recent draft [UMA] between . . . [the] County and [Partners], 17 . . . , for the development of the . . . Marina.” 18 BOR further stated that “[f]inal review and approval of this 19 contract will be provided after minor corrections are addressed and 20 legal review has been completed.” 21 noting that the draft UMA “accurately state[d] that various 22 activities during both the developmental phase and the operational 23 phase of this project will Require [BOR] approval.” 24 added). 25 requirements[.]” Id. 26 the draft UMA needed to be “correct[ed] . . . to add [BOR] as an 27 approving entity” for a certain potential use. In a November 14, 2005, letter BOR “indicat[ed] [its] Id. at 000162. Id. In that letter, Id. at 000160. That letter continued, Id. (emphasis BOR “reiterate[d] the importance of abiding by th[o]se Consistent with the foregoing, BOR noted that - 24 - Id. After listing 1 “[k]ey areas requiring [BOR] approval[,]” BOR advised the County of 2 BOR’s “require[ment]” for advance funding for certain administrative 3 costs. Id. 4 Furthermore, while BOR agreed that as part of the UMA, Partners 5 could be offered a “right of first refusal for the potential use” of 6 certain “Highway . . . frontage[,]” BOR expressly conditioned that 7 approval upon [BOR] developing and executing an Amendment with the 8 County to the [RMA] for th[o]se uses.” 9 things that amendment would “provide for a long term revenue sharing Id. at 000161. Among other 10 agreement between” BOR and the County. 11 sentence of that letter, BOR informed the County that “[o]nce legal 12 review is complete,” it would “provide . . . formal approval” of the 13 UMA. 14 had “any further questions.” Id. Id. In the penultimate Lastly, the County was instructed to contact BOR if it Id. 15 In a second letter, dated December 6, 2005, BOR informed the 16 County that it had “completed [its] final review of the [proposed 17 UMA], including [the County’s] most recent changes[.]” Id. at 00162. 18 BOR found the proposed UMA “acceptable” in that form. 19 BOR closed that letter by indicating the if the County had “any 20 further questions[,]” it could contact the BOR staff person named 21 therein. 22 Id. Again, Id. As detailed above, BOR had an integral role in the RFP process; 23 it was not merely rubber-stamping those RFPs. 24 participated nearly every step of the way in the process which 25 culminated in the Final UMA. 26 UMA. 27 authority by stressing that the RMA did not require that it give BOR actively It reviewed the RFPs and the proposed BOR attempts to distance itself from its final approval - 25 - 1 final approval to the RFPs, only to the UMA itself. 2 BOR notes that “[b]oat storage/both wet and dry/boat repair and 3 sales[,]” and “[s]upply stores/including boat equipment” are 4 specifically enumerated in the “pre-approved list of potential 5 public recreational uses for LPRP third party concession 6 agreements[.]” Id. at 000017. 7 marina was on the “pre-approved” list of potential uses ignores the 8 reality of BOR’s involvement. 9 constituted, BOR’s heavy involvement in the RFP process, culminating In that regard, Reliance upon the fact that the On the record as presently 10 in approving the Final UMA, is readily apparent. 11 retention of broad “final approval” rights over the UMA, if BOR was 12 not satisfied with any aspect of that Agreement, including the RFP 13 process, it could have withheld final approval; but it did not. 14 Therefore, the court finds that the County was “acting as an ‘agent’ 15 for a federal entity[,]” BOR, within the meaning of section 16 1491(b)(1). 17 18 Given its See Blue Water Envt’l, 60 Fed. Cl. at 51. c. Violation in Connection with Procurement Having found the plaintiffs Pensus and Maule-Ffinch are 19 “interested parties” and that the County was acting as an agent for 20 BOR, the next step in analyzing section 1491(b)(1) is whether 21 plaintiffs are claiming “any alleged violation of statute or 22 regulation in connection with a procurement or proposed 23 procurement[]” in count one. 24 connection with” language, which the Federal Circuit has observed is 25 the “operative phrase,” is “very sweeping in scope.” 26 Group, Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999). 27 “[A] statute is ‘in connection’ with a procurement, or a proposed See 28 U.S.C. § 1491(b)(1). - 26 - The “in RAMCOR Serv. 1 procurement, ‘[a]s long as [the] statute has a connection to a 2 procurement proposal.” 3 WL 320642, at *5 (Fed.Cl. Jan. 28, 2009) (quoting RAMCOR, 185 F.3d 4 at 1289). 5 objection to the actual contract procurement.’” Public Warehousing 6 Company K.S.C. v. Defense Supply Center Philadelphia, 489 F.Supp.2d 7 30, 38 (D.D.C. 2007) (quoting RAMCOR, 185 F.3d at 1289). 8 ‘statute or regulation in connection with a procurement or a 9 proposed procurement’ includes, by definition, a regulation in Rhinocorps Ltd. Co. v. United States, 2009 “The clause [“in connection with”] ‘does not require an “Thus, a 10 connection with any stage of the federal contracting acquisition 11 process, including ‘contract completion and closeout.’” Id. 12 Likewise, “the Federal Circuit [has] held that a statute is ‘in 13 connection with a procurement’ where ‘an agency’s actions under a 14 statute . . . clearly affect the award and performance of a 15 contract.’” Id. (quoting RAMCOR, 185 F.3d at 1289). 16 Phoenix Air Group, supra, is particularly instructive given 17 that the plaintiff therein alleged violations of the Armed Services 18 Procurement Act (“ASPA”), which is “almost identical” to the FPASA - 19 the primary basis for count one herein. 20 (citation omitted). 21 “government agencies conducting procurements must obtain full and 22 open competition through the use of competitive procedures in 23 accordance with the requirements of this chapter and the Federal 24 Acquisition Regulation[s] [(“FAR”)][.]” Id. at 101 (internal 25 quotation marks and citation omitted). 26 scope” of the phrase “in connection with,” the Phoenix Air Group 27 court held that allegations that defendant violated the ASPA by See id. at 101, n. 12 The ASPA requires, like other statutes, that - 27 - After noting the “sweeping 1 “sole-source acquisition of training flight services . . . without 2 any competition[,]” was “sufficient to satisfy the portion of the 3 jurisdictional requirements [of section 1491(b)(1)] relating to a 4 ‘violation of statute or regulation.’” Id. 5 In the present case, the statutory basis for count one is the 6 FPASA, and related regulations. 7 requiring “full and open competition” in “[a]ll procurement 8 transactions[,]” FAC (doc. 4), at 15, ¶¶ 63 and 66 (emphasis in 9 FAC), plaintiffs are seeking a declaration, inter alia, that Quoting several regulations 10 defendants violated “FPASA by failing to ensure compliance with 11 federal procurement law by [the County], and authorizing the 12 Proposed UMA based on the illegal 2005 RFP[.]” Id. at 26, Prayer for 13 Relief, at ¶ 1. 14 ASPA, and that plaintiffs herein are relying upon essentially the 15 same “full and open competition” requirements at issue in Phoenix 16 Air Group, the court has little difficulty finding that alleged 17 violations of the FPASA and related regulations satisfy the “portion 18 of the jurisdictional requirements relating to a ‘violation of a 19 statute or regulation’” under section 1491(b)(1). 20 Group, 46 Fed.Cl. at 101; and at 101 n. 12. 21 Given that the FPASA is “almost identical” to the See Phoenix Air That does not end the court’s inquiry, however. In fact, in 22 some respects that is just the starting point because “[m]uch 23 depends . . . on the meaning of the term ‘procurement’” - another 24 term which the ADRA does not define. 25 F.Supp.2d at 38. 26 procurement. 27 FARs directly refer to the definition of “‘acquisition’” therein. Public Warehousing, 489 Nor, for that matter, do the FARs define Instead, after the listing for “procurement[,]” the - 28 - 1 See 48 C.R.F. 2.101(b). 2 construed ‘procurement’ as used in section 1491(b)(1) to encompass 3 ‘all stages of the process of acquiring property or services, 4 beginning with the process for determining a need for property or 5 services and ending with contract completion and closeout,’ 6 borrowing from Congress’s definition of the term procurement at 41 7 U.S.C. § 403(2).” 8 (citations and footnote omitted) (emphasis added). 9 10 11 12 13 14 However, “[t]he Court of Federal Claims has Public Warehousing, 489 F.Supp.2d at 38 Section 403(2) does not define “acquiring,” but the FARs are instructive. Section 2.101(b)(2) defines acquisition as follows: the acquiring by contract with appropriated funds of supplies or services (including construction) by and for the use of the Federal Government through purchase or lease, whether the supplies or services are already in existence or must be created, developed, demonstrated, and evaluated. 15 48 C.F.R. § 2.101(b)(2) (emphasis added). 16 “supplies” as “all property except land or interest in land.” 17 (emphasis added). 18 not limited to) public works, buildings, and facilities; ships, 19 [and] floating equipment . . . ; and the alteration or installation 20 of any of the foregoing.” 21 That FAR further defines Id. Among other things, “supplies” “include[] (but is Id. The FARs do not define services. The parties vigorously dispute, albeit in the merits context, 22 whether the RMA and the UMA are procurement contracts. 23 reason to believe that the parties would not advance these same 24 arguments in considering whether plaintiffs can avail themselves of 25 the APA’s sovereign immunity waiver. 26 assumption. 27 There is no The court will proceed on that Plaintiffs are seeking a declaration that defendants violated - 29 - 1 the FPASA by “authorizing the Proposed UMA based on the illegal 2005 2 RFP.” 3 added). 4 “[s]et aside the [Final] 2005 UMA[.]” Id. at 27, Prayer for Relief, 5 at ¶ 8 (emphasis added). 6 confine its analysis to whether the UMA, as opposed to the RMA, is a 7 procurement contract, so as to bring it within the ambit of section 8 1491(b)(1). 9 FAC (doc. 4) at 26, Prayer for Relief, at ¶ 1 (emphasis Ultimately, plaintiffs are seeking to have this court Thus, for the moment, the court will BOR contends that the UMA is not a procurement contract; it is 10 a concession contract. 11 procurement contracts, the Court of Federal Claims has explained 12 that the former operates as “a grant of a permit to operate a 13 business and the Government is not committing to pay out government 14 funds or incur monetary liability.” 15 Fed.Cl. 56, 59 (2005) (internal quotations and citations omitted), 16 aff’d without pub’d opinion, 186 Fed.Appx. 990 (C.A.Fed. 2006). 17 BOR maintains that the UMA easily fits within that definition. 18 Additionally, BOR reasons that the UMA cannot be deemed a 19 procurement contract because it did not “require[] or obligate[] 20 the expenditure of federal appropriated funds or involve[] the 21 acquisition of property, services, or construction for the federal 22 government or even the County.” 23 18:1. 24 Expressly distinguishing concession from Frazier v. United States, 67 BOR Resp. (doc. 113) at 17:27- Begging the issue, in their reply plaintiffs simply contend 25 that “BOR’s mandatory [D&Ss] require that concessions by non- 26 federal partners comply with federal law, and make no exceptions 27 for federal procurement law.” Pl. Reply (doc. 188) at 5:22-24. - 30 - 1 Plaintiffs never explain how the UMA can be considered a 2 procurement within the meaning of the applicable statutes, 3 regulations or case law, however. 4 Examination of the UMA shows that it is not a procurement 5 contract. 6 UMA. 7 large” acquired the “services” rendered thereunder - not the County 8 and not BOR. 9 parties were entering into that agreement “to provide dry stack Neither the County nor BOR acquired property under the Regardless of the definition of “services,” the “public at Admin. Rec., Vol. 1 at 000167 (stating that the 10 storage, watercraft rentals, boating supply store and other related 11 services to the public at LPRP ”).9 12 the County nor BOR are committed to paying out any government 13 funds. 14 pay the County a percentage of gross receipts. 15 000168- 000170. 16 Further, under the UMA neither The funds flowed the opposite way; Partners is obligated to Id., Vol. 1 at Likewise, neither BOR nor the County incurred any monetary 17 liability under the UMA. 18 shall “indemnify and 19 Vol. 1, at 000186 at ¶ 21(A). 20 include both the County and BOR 21 all policies of insurance.” 22 These provisions severely restrict if not avoid altogether the 23 possibility of either the County or BOR incurring any monetary Moreover, the UMA mandates that Partners hold harmless” both the County and BOR. Id., The UMA also mandates that Partners as “‘additional insureds’ under Id., Vol. 1 at 000188, ¶ 21(B)(4)(a). 24 25 26 27 9 The court realizes that the Administrative Record contains what purports to be the December 6, 2005 “Final Version” of the UMA, and the FAC is quoting from a October 19, 2005 “Draft” version. See FAC, exh. I thereto. The language quoted herein is the same in both versions, however, so for present purposes it matters not that the Administrative Record contains the “Final Version,” but the FAC is relying upon a “Draft” version. - 31 - 1 liability under the UMA. 2 procurement contract are missing from the UMA. 3 Thus the fundamental hallmarks of a Bolstering the conclusion that the UMA is a concession 4 contract is the language which that agreement employs. 5 replete with references to concession in its various forms. 6 example, Partners is referred to throughout as the 7 “CONCESSIONAIRE.” 8 (emphasis in original). 9 specifically describe the “Concession Granted[.]” Id., Vol. 1 at The UMA is For See Admin. Rec., Vol. 1 at 000166-000203 “General Provisions” in the UMA 10 000167, ¶ 1. 11 and Standards [“D&Ss”] as identified in exhibit B” thereto. 12 Vol. 1 at 000167. 13 “Concessions Management by Non-Federal Partners[.]” Id., Vol. 1 at 14 000150 (emphasis added). 15 plaintiffs are strenuously arguing that this is a procurement 16 action, they sometimes refer to the UMA as a “concession 17 agreement.” 18 The UMA also specifically refers to BOR’s “Directives Id., The “subject” of those particular D&Ss is Somewhat tellingly, at the same time See, e.g., Pl. Reply (doc. 118) at 2:18-19. The court hastens to add that use of the word “concession” or 19 “concessionaire” is not alone dispositive of the nature of the UMA. 20 After all, any agreement could be denoted a “concession agreement.” 21 Rather what governs here is the nature of the UMA, which clearly 22 granted Partners permission to develop, operate and maintain a 23 marina at LPRP, without any expenditure of government funds. 24 Having found that the UMA is a concession contract, necessarily, 25 the Court of Federal Claims would not have jurisdiction under 26 section 1491(b)(1) over any claimed statutory or regulatory 27 violations “in connection with” the UMA. - 32 - 1 The court cannot disregard plaintiffs’ argument, however, 2 that the RMA, which authorized the County to enter into the UMA, is 3 a procurement contract. 4 procurement contract, plaintiffs tacitly assume that so, too, is 5 the UMA. 6 reasoning. 7 plaintiffs devoted a fair portion of their briefs to this issue, 8 the court will address it as well. 9 Vigorously contending that the RMA is a The court has serious reservations as to this line of But again, to be thorough, and because the BOR and Plaintiffs point to several aspects of the RMA which they 10 believe establish that it is a procurement contract. 11 stress that BOR acquired property from the County under the RMA. 12 The County “transfer[red] to” BOR, inter alia, “any and all 13 incorporeal property interests of said County in the existing park 14 lands, and facilities, including any purported water rights . . . ; 15 and any and all fixtures or improvements in such lands which have 16 not been otherwise acquired by [BOR].” 17 000007, Art. 4(a) (emphasis added). 18 that in accordance with the RMA, “[a]s full and complete 19 consideration” for transfer of those property interests, BOR 20 granted the County, inter alia, “the exclusive right . . . to 21 manage for public recreational uses the lands and waters thereon 22 . . . as Federal LPRP land manager.” 23 Art. 4(c)(3). 24 authority to the County to “enter into third party concession 25 agreements[.]” 26 the foregoing consideration, BOR paid the County $2.5 million 27 which, from plaintiffs’ standpoint, was “in exchange for the County First, they Admin. Rec., Vol. 1 at Plaintiffs further explain Id., Vol. 1 at 000007, at That consideration also included BOR granting Id., Vol 1 at 000008, Art. 4(c)(4). - 33 - In addition to 1 providing services in the form of management of BOR land.” 2 Reply (doc. 118) at 5:16-17 (emphasis added). 3 “utilize[]” those monies “only in connection with the recreational 4 development of the LPRP wherein [BOR] has Federal land management 5 responsibility[,]” however. 6 4(c)(6) (emphasis added). 7 payment for rendering management services per se. 8 9 Pl. The County was to Admin. Rec., Vol. 1 at 000008, Art. Therefore, the County was not receiving Plaintiffs further rely on one cost-sharing provision of the RMA which they believe demonstrates that it is a procurement 10 contract. 11 costs . . . for the development of the LPRP for public recreational 12 uses.” 13 note that “any development of LPRP lands subject to the third party 14 concession agreement . . . may be completed at [the] . . . County’s 15 sole cost and expense” provided BOR has given its prior approval. 16 Id., Vol. 1 at 000011, Art. 6(b). 17 that that provision further states that “[u]pon termination of 18 th[e] [RMA], title to such facilities shall be vested in [BOR] 19 unless otherwise noted in [BOR]’s approval of the development of 20 such Facilities.” 21 plaintiffs’ position that that possible future vesting of title 22 amounts to BOR acquiring certain facilities pursuant to the RMA. 23 BOR strongly disagrees with plaintiffs’ characterization of In that provision, the County and BOR agreed to “share Id., Vol. 1 at 000005 at Art. 2(d). Id. Lastly, plaintiffs Plaintiffs highlight the fact Although unstated, evidently it is 24 the RMA as a procurement contract. 25 aspects of the RMA upon which plaintiffs are relying establish that 26 it is a procurement contract. 27 that it did not “acquire” anything from the County pursuant to the BOR counters that none of the Essentially, it is BOR’s position - 34 - 1 RMA. 2 County under the RMA was “as partial consideration for the County’s 3 property transfer to [BOR].” 4 Therefore, despite plaintiffs’ assertion to the contrary, BOR 5 maintains that that management right was “not a ‘service’ for which 6 [it] was paying consideration.” 7 that the only “property” which it acquired was land, which is 8 “excluded from federal procurement law.” 9 C.F.R. § 2.101.) BOR explains that the management right which it granted the Fed. Def. Reply (doc. 134) at 7:20. Id. at 7:21. BOR further asserts Id. at 7:24 (citing 48 Nor were these monies to provide financial 10 assistance to the County. 11 BOR stresses that the RMA’s transfer provisions, found in Article 12 4, are not incorporated in Article 2's recreational management 13 provision, nor in the third-party concession provision of Article 14 13. 15 As further support for this argument, BOR also challenges plaintiffs’ attempt to cast any of the 16 RMA’s cost sharing provisions as an acquisition, and hence a 17 procurement. 18 those provisions. 19 outline the circumstances under which some costs will be shared 20 between [BOR] and the County[]” on a 50-50 basis. 21 134) at 8:3-4. 22 no federal funds or assistance were provided in connection with 23 development of facilities such as the marina complex. 24 development was undertaken pursuant to the UMA - a third party 25 agreement, with Partners bearing the cost. BOR explains that it did not “acquire” anything under Rather, those cost sharing provisions “merely BOR Reply (doc. Perhaps most notably, in accordance with the RMA, The 26 As to the possible future vesting of title in BOR for 27 “improvements built without federal assistance” under Article 6, - 35 - 1 which sets forth, inter alia, “LPRP Development Obligations[,]” BOR 2 persuasively asserts that its “ability to potentially obtain 3 improvements to the park under the contingencies noted in [that] 4 article . . . can hardly fall within the definition of acquisition 5 as noted in . . . FAR[,] 48 [C.F.R.] § 2.101.” 6 134) at 8:15-18. 7 name indicates, nothing more than a management agreement, which is 8 not synonymous with procurement. 9 BOR Reply (doc. Instead, BOR maintains that the RMA is, as its In disputing whether the RMA is a procurement contract, the 10 parties fail to take into account the entirety of what was 11 transferred to BOR. 12 the RMA, the County transferred land to it. 13 understandable because, as previously mentioned, in defining 14 supplies under the FARs, “land or interest in land” is expressly 15 excluded from the definition of “supplies” which may be acquired by 16 contract. 17 the RMA exclusively involves a transfer of “and or interest in 18 land,” then the RMA would not be a procurement, as section 19 1491(b)(1) uses that term. 20 federal procurement laws. 21 Claims would lack jurisdiction under section 1491(b)(1) to consider 22 any disputes pertaining thereto. 23 BOR emphasizes that pursuant to Article 4 of See 48 C.F.R. § 2.101(b). This emphasis is Therefore, if, as BOR urges, Hence, the RMA would not be subject to Necessarily then, the Court of Federal Significantly, however, the County transferred more than just 24 land to the BOR under the RMA. 25 it pertains to the “[t]ransfer of [e]xisting [p]ark [f]acilities 26 and [r]elated [p]roperty [i]nterests[.]” Admin. Rec., Vol. 1 at 27 000007, Art. 4 (emphasis added). As Article 4 states in its title, Subarticle (a) explicitly states - 36 - 1 that the “County agrees to transfer to [BOR]. . . and [BOR] accepts 2 . . . , any and all incorporeal property interests of said County 3 in the existing park lands, and facilities[.]” Id., Vol. 1 at 4 000007, Art. 4(a) (emphasis added). 5 4 indicates that “[a]s full and complete consideration for [the] 6 County’s transfer of its property interests as set forth in 7 subarticle (a) above, [BOR] shall provide[]” to the County, inter 8 alia, $2.5 million. 9 and 4(c)(6). Subsection(c) of that Article Id., Vol. 1 at 000007 and 000008, Arts. 4(c) Under the express terms of the RMA then, the County 10 transferred to BOR not only land interests, but also facilities. 11 Although land interests are exempt from the definition of 12 “supplies” under the FARs, facilities are not, as noted earlier. 13 Additionally, those facilities were obtained through the 14 expenditure of appropriated funds, i.e., “the authority of the Act 15 of June 17, 1902 (. . . and all acts amendatory thereof and 16 supplemental thereto, including the Colorado River Basin Project 17 Act[.]” Id., Vol. 1 at 000008, Art. 4(c)(6). 18 although the land which the County transferred to the BOR is not a 19 procurement, the facilities would be, rendering the RMA a 20 “procurement,” at least partially. 21 Consequently, At the end of the day though, the court is unwilling to hold 22 that count one pertains to an “alleged violation of statute or 23 regulation in connection with a procurement or a proposed 24 procurement.” 25 relationship between the RMA and the central issue in count one - 26 alleged improprieties in the RFP process - is simply too attenuated 27 to deem that count to be “in connection with a procurement.” See 28 U.S.C. § 1491(b)(1) (emphasis added). - 37 - The Put 1 differently, although there is a procurement aspect to the RMA, 2 that is not enough to bring the allegations of count one within the 3 purview of section 1491(b)(1). 4 that the “solicitation” of which plaintiffs are complaining in 5 count one pertains solely to the UMA, which the court has found is 6 a concession agreement. 7 The Court cannot ignore the reality At first glance, arguably count one of the FAC is a classic 8 bid protest, as Partners contends, which would lie within the 9 exclusive jurisdiction of the Court of Federal Claims. As should 10 be patently obvious by now, one limitation on that Court’s 11 jurisdiction under section 1491(b)(1) of the ADRA is, as discussed 12 above, the claim must be “in connection with a procurement or 13 proposed procurement.” 14 core of count one, reveals that it does not meet that criteria; 15 indeed, it cannot because the UMA is a concession agreement 16 a procurement agreement. 17 which the UMA emanates, is partially a procurement is not a 18 sufficient basis upon which to find that count one alleges a 19 violation of a statute “in connection with procurement.” 20 at a minimum the procurement element of section 1491(b)(1) is 21 missing, the Court of Federal Claims is without jurisdiction to 22 entertain count one. 23 count] is not available elsewhere[,]” i.e. in the Court of Federal 24 Claims. 25 (citation omitted). 26 waiver of sovereign immunity under the APA also is met here. 27 . . . Close scrutiny of the UMA, which is at the - not Moreover, the fact that the RMA, from Because Thus, “an adequate remedy for . . . [that See Grant County Black Sands, 539 F.Supp.2d at 1296 Hence, the second condition for showing a - 38 - 1 3. 2 “Expressly of Impliedly Forbids” The third condition necessary to establish an APA waiver of 3 sovereign immunity is the claims sought must not seek relief 4 “expressly or impliedly forbid[den] by another statute.” 5 U.S.C. § 702. 6 that another statute forbids plaintiffs’ claims in count one. 7 is possible to insinuate from defendants’ argument, though, that 8 because pursuant to the ADRA the Court of Federal Claims has 9 exclusive jurisdiction over plaintiffs’ count one claims, that Act See 5 The parties do not even suggest, much less argue, It 10 “expressly or impliedly forbids” this court from exercising 11 jurisdiction over those same claims. 12 section I(A)(2) above as to the availability of adequate remedies 13 elsewhere resolves this argument. 14 Claims lacks jurisdiction to entertain count one, it follows that 15 the ADRA does not “expressly or impliedly” forbid those claims. 16 Thus, because all three conditions necessary to establish waiver of 17 sovereign immunity under the APA are satisfied, plaintiffs are 18 entitled to rely upon that limited waiver. 19 II. 20 The court’s reasoning in Because the Court of Federal Failure to Exhaust Administrative Remedies There is one additional argument which the court must address 21 before turning to the merits – plaintiffs’ alleged failure to 22 exhaust administrative remedies. 23 ground for Partners’ partial summary judgment motion, but BOR did 24 not raise that issue. Failure to exhaust is the first 25 A. 26 Before turning to the merits of this exhaustion argument, the 27 Standing court must consider plaintiffs’ contention that Partners “[l]acks - 39 - 1 [s]tanding to [a]ssert” that “[d]efense.” 2 1:17. 3 Wright v. Inman, 923 F.Supp. 1295 (D.Nev. 1996), does not support 4 their argument. 5 they should be allowed to raise the exhaustion issue. 6 the United States Forest Service approved a mining company’s 7 expansion project on a national forest. 8 landowners and opponents of that expansion, filed suit against the 9 Forest Service alleged violations of the National Environmental Pl. Resp. (doc. 122) at The only potentially relevant case to which plaintiffs cite, Wright actually supports Partners’ argument that In Wright, Plaintiffs, adjacent 10 Policy Act. 11 dismiss for lack of subject matter jurisdiction, asserting that 12 plaintiffs failed “to satisfy the APA’s exhaustion requirement.” 13 Id. at 1299. 14 interesting . . . . that the Forest Service [did] not join[] in” 15 that motion. 16 the mining company’s exhaustion argument on the merits. 17 declines to rely upon that passing observation in Wright to find 18 that Partners lack standing to raise exhaustion of administrative 19 remedies. 20 B. 21 The defendant/intervenor mining company, moved to The Wright court did comment that “[i]t [wa]s Id. at 1299 n.5. Nonetheless, the court did address This court Waiver Plaintiffs also suggest that the exhaustion requirement has 22 been waived here. 23 affirmative defense and because BOR did not raise that defense in 24 its answer or motion, Partners should not be allowed to raise it 25 now. 26 and thus, by extension, so did Partners. 27 exhaustion is waivable, the court declines to impute BOR’s supposed Plaintiffs contend that exhaustion is an In other words, BOR waived its right to assert exhaustion, - 40 - Assuming arguendo that 1 2 waiver of that defense to Partners. Partners explicitly asserted exhaustion of administrative 3 remedies as an affirmative defense in its answer. 4 (doc. 14) at 8, ¶ 55. 5 rely to support their argument that exhaustion is waivable are 6 readily distinguishable. 7 present case. 8 “involved an intervenor attempting to protect a contractual 9 interest created as part of a procurement process.” See Part. Ans. Moreover, the cases upon which plaintiffs None are even remotely similar to the As Partners correctly point out, none of those cases Part. Reply 10 (doc. 137) at 5:12-13. 11 that Partners did not waive its right to assert failure to exhaust 12 administrative remedies. Under these circumstances, the court finds 13 C. 14 Referring to section 704 of the APA and 43 C.F.R. Merits 15 § 12.76(b)(12), Partners contends that plaintiffs were “required to 16 exhaust administrative remedies before” commencing this action. 17 Part. Mot. (doc. 110) at 2:5. 18 review of “final agency action for which there is no other adequate 19 remedy in court.” 20 that when a statute or agency rule dictates that exhaustion of 21 administrative remedies is required, the federal courts may not 22 assert jurisdiction to review agency action until the 23 administrative appeals are complete.” 24 v. Hodel, 840 F.2d 675, 677 (9th Cir. 1988) (citation omitted). 25 Here, the regulation which Partners invokes provides that “[a] 26 protestor must exhaust all administrative remedies with the grantee 27 and subgrantee before pursuing a protest with the Federal agency.” Section 704 allows for judicial 5 U.S.C. § 704 (West 2007). - 41 - “That section means White Mountain Apache Tribe 1 43 C.F.R. § 12.76(b)(12) (emphasis added). 2 regulation, Partners believes that plaintiffs had an obligation to 3 exhaust their administrative remedies with the County, and 4 plaintiffs did not do that. 5 Partners’ motion for partial summary judgment based upon failure to 6 exhaust. 7 In accordance with that Hence, the court should grant On the face of it, section 12.76(b)(12) does not apply here 8 because it does not, as Partners believe, require exhaustion before 9 seeking judicial review. That regulation mandates exhaustion of 10 administrative remedies as a prerequisite only to agency review. 11 Given the exceedingly narrow scope of Partners’ exhaustion 12 argument, the court finds that it has no merit.10 13 Partners are not entitled to partial summary judgment on that 14 basis. 15 Therefore, With the issues of subject matter jurisdiction, waiver of 16 sovereign immunity and failure to exhaust administrative remedies 17 behind it, the court, at last, can address the merits. 18 III. 19 Motions for Partial Summary Judgment Basically, plaintiffs assert that they are entitled to summary 20 judgment as to count one because “BOR improperly failed to ensure 21 full and open competition” in the Scorpion Bay marina project in 22 violation of “federal procurement law, regulation and policy.” 23 Mot. (doc. 88) at 9:9; and FAC (doc. 4) at 17, ¶ 80. 24 abundantly clear by now, BOR strenuously denies that this is a 25 procurement action. Pl. As should be Thus, BOR is taking the position that in count 26 10 27 To some extent, Partners’ reliance upon that particular regulation is understandable because count one refers to various subsections of 43 C.F.R. Part 12, although not that specific one. - 42 - 1 one plaintiffs are improperly relying upon the FPASA, “which is the 2 organic authority for most of the regulations controlling 3 procurement decisions.” 4 725 F.2d 958, 966 (4th Cir. 1984). 5 that count plaintiffs are improperly relying upon various 6 regulations, BOR D&Ss and BOR policies, all of which govern 7 procurement. 8 applicability of the FPASA, the cited regulations, and the cited 9 BOR D&Ss and policies. See Motor Coach Industries, Inc. v. Dole, Likewise, BOR asserts that in The court will separately address the potential 10 A. 11 In its jurisdictional statement, plaintiff baldly alleges that FPASA 12 it is asserting “violations of . . . FPASA[,]” among other 13 statutes. 14 plaintiffs articulate precisely what those alleged statutory 15 violations are, however. 16 FPASA, the FAC merely 17 provide the federal government with an economical and efficient 18 system for procuring property and services.” 19 (citing 40 U.S.C. § 101). 20 and (c) of the FPASA. 21 President to “prescribe policies and directives necessary to carry 22 out the FPASA[,] id. (citing 40 U.S.C. § 121(a)), and “authorize” 23 the Administrator of General Services to “prescribe regulations to 24 carry out” the FPASA. 25 sum total of plaintiffs’ FPASA allegations. 26 from plaintiffs’ memoranda of law filed herein is any mention of 27 alleged FPASA violations. FAC (doc. 4) at 2, ¶ 1. Nowhere in their FAC do Citing to the “purpose” section of the alleges that that Act was “intended to Id. at 14, ¶ 59 The FAC also cites to sections 121(a) Respectively, those sections “authorize the 40 U.S.C. § 121(c) (West 2005). That is the Conspicuously absent Accordingly, because plaintiffs have not - 43 - 1 even alleged, much less proven, a violation of the FPASA, 2 defendants are entitled to summary judgment on count one insofar as 3 it is premised upon such violations of the FPASA. 4 B. 5 It is also possible to construe count one, however, as Regulations 6 alleging that the BOR violated several regulations. 7 alleges that the RMA is a “cooperative agreement[;]” and as such is 8 governed by the regulations set forth in 41 C.F.R. Part 105. 9 (doc. 4) at 15, ¶ 60. The FAC FAC The FAC then selectively quotes identical 10 language from 41 C.F.R. § 105.71-136 and 43 C.F.R. § 12.76. 11 sections outline “procurement standards” which “grantees and 12 subgrantees will follow” “[w]hen procuring property and services 13 under a grant[.]” 41 C.F.R. § 71.136(a) and (b) (emphasis added); 14 and 43 C.F.R. § 12.76(a) and (b) (emphasis added). 15 alleges, those regulations state, inter alia, that “[a]ll 16 procurement transactions will be conducted in a manner providing 17 full and open competition[.]” 41 C.F.R. § 105.71-136(c)(1); and 43 18 C.F.R. § 12.76(c)(1). 19 also state that “[s]ome of the situations considered to be 20 restrictive of competition included . . . [p]lacing unreasonable 21 requirements on firms in order for them to qualify to do business 22 . . . and [a]ny arbitrary action in the procurement process.” 23 The thrust of count one seems to be that BOR acted arbitrarily, 24 capriciously and abused its discretion when it approved the 25 Proposed UMA in violation of these regulations. 26 27 Those As the FAC As the FAC further alleges, both regulations This argument fails on several grounds. Id. First, the UMA is not a grant or a cooperative agreement; hence those regulations do not - 44 - 1 apply. 2 instrument[s] reflecting a relationship between the United States 3 Government and . . . , a local government, . . . when . . . the 4 principal purpose of the relationship is to transfer a thing of 5 value to the . . . , local government, . . . to carry out a public 6 purpose[.]” 31 U.S.C. § 6305(1) (West 2003). 7 regulatory definition of “grant” subsumes “cooperative agreements.” 8 Grant “means an award of financial assistance, including 9 cooperative agreements, in the form of money, or property in lieu Cooperative agreements are, inter alia, “legal The applicable 10 of money, by the Federal Government to an eligible grantee.” 11 C.F.R. § 12.43 (emphasis added). 12 43 It is patently obvious that the UMA is not a “cooperative 13 agreement” in that it is not a “legal instrument reflecting a 14 relationship between the United States Government and . . . a local 15 government[.]” 16 local government, the County, and Partners, a private entity. 17 deeming the County to be the United States government for purposes 18 of the UMA, that agreement did not “transfer a thing of value to 19 [a] local government to carry out a public purpose.” 20 purpose of the UMA was, as previously explained, to grant a 21 concession to Partners, a non-federal entity, to develop, operate 22 and maintain a marina complex at LPRP. 23 See 31 U.S.C. § 6305(1). The UMA is between a Even See id. The Likewise, the UMA is not a “cooperative agreement” in that the 24 federal government was not awarded financial assistance under the 25 UMA. 26 as BOR’s agent for purposes of the UMA, that would not be 27 sufficient to transform the UMA into a cooperative agreement. Even proceeding under the theory that the County was acting - 45 - That 1 is because the concession agreement was not “an award of financial 2 assistance” to Partners. 3 monetary obligations thereunder in that it had to provide financing 4 for the marina complex, as well as a “capital construction 5 guarantee[.]” Admin. Rec., Vol. 1 at 000170, ¶¶¶ 6(A) and (B). 6 short, because the UMA is not a grant or a cooperative agreement, 7 as a matter of law, plaintiffs cannot rely upon the regulations set 8 forth in their FAC to sustain their first cause of action. 9 Attempting to bring the UMA within the scope of those 10 regulations, the FAC alleges that the RMA is a cooperative 11 agreement.11 12 positing that if the RMA is a cooperative agreement governed by the 13 regulations specified in the FAC, then because the RMA was the 14 source for the UMA, those regulations govern the UMA too. 15 remains, however, that count one is challenging BOR’s actions only 16 with respect to the UMA. 17 agreement, that is simply too remote a basis upon which to find 18 that BOR had to comply with these regulations as to the UMA – 19 which clearly is neither a grant nor a cooperative agreement. In fact, Partners incurred significant FAC (doc. 4) at 15, ¶ 60. In Evidently plaintiffs are The fact So, even if the RMA is a cooperative 20 C. 21 Having found that the FPASA and the regulations cited in count 22 one are inapplicable, the remaining possible sources for imposing a 23 legally enforceable duty upon BOR are the D&Ss and policies in BOR Policies and D&Ss 24 25 26 27 11 Wisely, plaintiffs did not allege, nor do they assert that the RMA is a grant. The RMA could not be deemed a grant because it did not award “financial assistance” to the County. The monies paid thereunder were in partial consideration for the County transferring land and facilities to BOR. Additionally, those monies were restricted in that they could “be utilized only in connection with recreational development of the LPRP wherein [BOR] has Federal land management responsibility.” FAC (doc. 4), exh. A thereto at 7, Art. 4(c)(6). - 46 - 1 BOR’s Manual. 2 policies which BOR allegedly violated. BOR argues that by their 3 terms, none of those items apply here. Even if substantively 4 applicable, BOR contends that plaintiffs cannot rely upon those 5 D&Ss and policies because those items are mere “guidelines[.]” 6 Resp. (doc. 114) at 19:3(citations omitted). 7 force and effect of law and cannot form the basis of a claim for 8 relief.” 9 Count one of the FAC quotes from three D&Ss and two BOR They “do not have the Id. at 19:3-4 (citations omitted). Taking the opposite view, plaintiffs counter that the D&Ss and 10 policies in the FAC do apply here. 11 language of the Manual, plaintiffs contend that the cited D&Ss12 are 12 binding on BOR. 13 the Manual’s language, plaintiffs refer to a BOR letter which they 14 construe as “confirm[ing] that BOR intended its D&Ss for concession 15 management by non-federal partners to be binding.” Further, given the “mandatory” See Pl. Reply (doc. 118) at 6:5. In addition to Id. at 9:9-10. 16 1. 17 The court will first consider the applicability of the D&Ss Applicability? 18 and policies as alleged in count one. 19 consider whether those items have the full force and effect of law. 20 The first D&S to which count one refers is from a D&S the It will then go on to 21 “subject” of which is “Concessions Management by Non-Federal 22 Partners[.]” See Admin. Rec., Vol. 1 at 000150. 23 sentence from that 8 page D&S, the FAC states that BOR “‘is 24 responsible for continuous management oversight of managing Quoting a single 25 26 27 12 The FAC quotes from two BOR policies as well. FAC (doc. 4) at 16, ¶¶ 71 and 72. Plaintiffs do not mention those policies in their Reply, however. Presumably plaintiffs’ argument as to the supposedly binding nature of the D&Ss also applies to the policies. - 47 - 1 partners and their concessions operations.’” FAC (doc. 4) at 16, 2 ¶ 68 (quoting exh. O thereto at 1, ¶ 1); see also Admin. Rec., Vol. 3 1 at 000150, ¶ 1. 4 acquisition, or even the broader concept of fair competition, as 5 BOR emphasizes. 6 the FAC refers does not, on the face of it, encompass any 7 obligations on the part of BOR with respect to the RFP process. 8 9 This sentence does not mention procurement, Therefore, the only portion of this D&S to which As plaintiffs note though, paragraph 5 of this D&S (which the FAC does not mention) states that “[c]oncession development will 10 adhere to the concession principles listed in” BOR’s “Policy” 11 governing “Concessions Management” policy. 12 000152, ¶ 5. 13 verbatim. 14 the awarding of concessions contracts[.]” Id., Vol. 1 at 000134, 15 ¶ 3(E); see also FAC (doc. 4) at 16, ¶ 17 (internal quotation marks 16 and citation omitted). 17 comply with applicable Federal, State, and local laws.” 18 at 000134, ¶ 3(G); see also FAC (doc. 4) at 16, ¶ 72 (internal 19 quotation marks and citation omitted). 20 perspective the “management oversight” responsibilities in 21 paragraph one of D&S (LND 04-02) include compliance with the just 22 quoted policies. 23 Admin. Rec., Vol. 1 at Among those “principles” are two which the FAC quotes The first principle is to “ensure fair competition in The second is that “[c]oncessions will Id., Vol.1 Thus, from plaintiffs’ Even assuming the validity of that argument, these 24 “principles” are included in the “Policy” section of BOR’s Manual. 25 And, as will be seen, BOR’s policies do not have the full force and 26 effect of law. 27 alleged violation of those principles to support a claim of Consequently, plaintiffs cannot rely upon any - 48 - 1 arbitrary and capricious conduct by BOR. 2 The FAC further alleges that in accordance with another D&S, 3 “all concession contracts issued by non-federal partners must use 4 language ‘that complies with all applicable Federal laws, rules, 5 regulations, and Executive Orders.’” 6 O thereto at ¶ 6(B)); see also Admin. Rec., Vol. 1 at 000153, 7 ¶6(B). 8 the court construes count one, they are not objecting to the 9 language of the “concession contract,” i.e., the UMA. Id. at 16, ¶ 69 (quoting exh. Plaintiffs’ reliance upon this D&S is misplaced because as Plaintiffs 10 are objecting to the language of the 2005 RFP. 11 extent the UMA can be read as alleging that the UMA violated this 12 particular D&S, it, too, does not have the full force and effect of 13 law, as will be explained momentarily. 14 Regardless, to the The FAC next selectively quotes from another D&S which BOR 15 purportedly violated. 16 “Manual . . . requires BOR to ensure ‘fair competition’ in the RFP 17 process.” 18 LND 04-01) at ¶ 4(B)(1)); see also Admin. Rec., Vol. 1 at 000139, 19 ¶ 4(B)(1). Plaintiffs’ reliance upon this particular D&S is wholly 20 misplaced. First of all, as BOR points out, this D&S is contained 21 in that part of the Manual governing “Concessions Management by 22 [BOR][.]” Admin. Rec., Vol. 1 at 000135 23 (emphasis added). 24 listed therein “apply to concessions managed directly by [BOR].” 25 Id., Vol. 1 at 000135, n. 1 (emphasis added). 26 note advises, “Separate directives and standards address 27 concessions managed by non-Federal partners.” Plaintiffs sweepingly allege that the Id. at 16, ¶ 70 (quoting exh. P thereto (BOR Manual - (footnote omitted) The note to that title explicates that the D&Ss - 49 - Continuing, that Id. There is no 1 dispute that the marina which is the subject of the UMA is not 2 “managed directly” by BOR. 3 not apply here. 4 Thus, on the face of it this D&S does Even if this “fair competition” D&S had some application here, 5 the FAC takes that phrase completely out of context. 6 competition” phrase is part of an “approach” which “will be applied 7 . . . [t]o allow for a wide distribution[]” of RFPs. 8 at 000139, ¶ 4(B). 9 “To ensure fair competition before and during the RFP process, The “fair Id., Vol. 1 That phrase comes from the following sentence: 10 meetings to discuss the RFP with existing or potential 11 concessionaires or other outside parties must be conducted.” 12 As can easily be seen, that D&S does not, as the FAC implies, 13 impose some broad, overarching requirement of fair competition on 14 the RFP process. 15 impose a legal duty upon BOR because as with the other D&Ss, it 16 does not have the force and effect of law. 17 18 2. Id. Moreover, plaintiffs cannot rely upon this D&S to “Full Force and Effect of Law” While “an agency can create a duty to the public which no 19 statute has expressly created, . . . not all agency policy 20 pronouncements which find their way to the public can be considered 21 regulations enforceable in federal court.” 22 Workers Union v. Legal Services Corp., 936 F.2d 1547, 1554 (9th Cir. 23 1991) (internal quotation marks and citations omitted). 24 the full force and effect of law . . . , the internal documents 25 must prescribe substantive rules - not interpretive rules, general 26 statements of policy or rules of agency organization, procedure or 27 practice[.]” Id. (internal quotation marks and citations omitted) - 50 - Multnomah Legal Service “To have 1 2 (emphasis in original). In the Ninth Circuit, “[t]wo factors determine whether a rule 3 is interpretive or substantive.” 4 “substantive . . . with binding effect[] if it “modifies or effects 5 a change in existing rights, law or policy[.]” Id. (internal 6 quotation marks and citation omitted). 7 only indicative of the agency’s interpretation of existing law or 8 policy, it is interpretive.” 9 citations omitted). Id. First of all, a rule is “If, however, the rule is Id. (internal quotation marks and 10 Second, “if the rule is promulgated pursuant to statutory 11 discretion or under statutory authority, it is a substantive rule.” 12 Id. (internal quotation marks and citation omitted). 13 “the agency does not exercise delegated legislative power to 14 promulgate the rule, it is interpretive.” 15 marks and citation omitted). 16 “[t]o satisfy this requirement, [an agency’s] policy must have been 17 promulgated pursuant to a specific statutory grant of authority, so 18 that a policy that was neither published in the Federal Register 19 nor disseminated to the public for scrutiny and comment will not 20 have the force and effect of law.” 21 and citations omitted); see also Novell, supra, 46 Fed. Cl. at 615 22 (internal quotation marks and citation omitted) (emphasis added by 23 Novell Court) (“[T]o be entitled to force and effect of law, a 24 binding agency regulation must, at the very least, be promulgated 25 by an agency with the intention that it establishes a binding rule. 26 Promulgation requires some act of publication, i.e., dissemination 27 to the public.”) But where Id. (internal quotation As the Ninth Circuit has explained, Id. (internal quotation marks BOR and plaintiffs agree that the two factors - 51 - 1 described above provide the framework for the court’s analysis, but 2 they disagree as to the results of that analysis. 3 Significantly, nothing on the face of the D&Ss or policies 4 states or even suggests that they are modifying or effecting a 5 change in any existing rights, law or policy. 6 plaintiffs are not making that argument. 7 undue emphasis on what they deem to be the “mandatory” language 8 contained in those D&Ss’, policies, and elsewhere. 9 plaintiffs point to language stating that “concession contract[s] 10 . . . must meet the requirements of these Concessions Management 11 D&Ss[;]” and “non-Federal concession contract[s] . . . must be 12 approved by [BOR].” 13 to FAC at 2, ¶4(A)(1) and (2)); see also Admin. Rec., Vol. 1 at 14 000151, ¶¶ 4(A)(1) and (2). 15 however, to render these D&S’ substantive rules with binding 16 effect, absent a showing that they modified or effected a change in 17 existing rights, law or policy. 18 D&Ss and policies which form the basis for count one lack the first 19 essential element of a substantive rule. 20 What is more, Instead, plaintiffs place For example, Pl. Reply (doc. 118) at 8:2-4 (quoting exh. O This language does not suffice, Hence, the court finds that the Further undermining plaintiffs’ argument that these D&Ss and 21 policies are substantive, and not interpretative, are statements 22 found on BOR’s website.13 As plaintiffs undoubtedly would stress, 23 24 25 26 27 13 Plaintiffs place a great deal of credence in BOR’s website when addressing the promulgation issue, but they did not request that the court take judicial notice of that website. In the exercise of its discretion, however, as Fed. R. Evid. 201(c) allows, the court will take judicial notice of BOR’s website at See In re Charles Schwab Corp. Sec. Litig., 2009 WL 262456, at *23 n. 18 (N.D.Cal. Feb. 4, 2009) (even though “neither side offered the FASB [Financial Accounting Standards Board] concepts at issue for judicial notice,” the court took judicial notice of those concepts because they are “publicly available from the FASB’s website[]”). - 52 - 1 that website explicitly states that “[a]ll requirements in the 2 [BOR] Manual are mandatory.” 3 court cannot ignore the larger context in which that statement 4 appears though. 5 of a series of Policy and [D&Ss].” 6 items “assign program responsibility and establish and document 7 [BOR]-wide methods of doing business.” 8 distinguished from the D&Ss, “reflect the [BOR] Commissioner’s 9 leadership philosophy and principles and defines the general at 1. The BOR’s website explains that its “Manual consists Id. “Collectively,” those Id. The policies, as 10 framework in which [BOR] pursues its mission.” 11 added). 12 included in a list of “Concessions Principles[.]” See Admin. Rec., 13 Vol. 1 at 000133 at ¶ 3. 14 is to “guide the planning, development, and management of 15 concessions[.]” Id. (emphasis added). 16 Id. (emphasis In a similar vein, the policies which the FAC quotes are The express purpose of those principles Balancing the polices are the D&Ss, which “provide the level 17 of detail necessary to ensure consistent application of Policy 18 [BOR]-wide[,]” while at the same time are “structured to provide 19 flexibility to local offices[.]” 20 1-2. 21 D&Ss, BOR’s website indicates that those items “fall into two 22 series[.]” 23 Land Management and Development D&Ss and policies in count one, 24 “primarily direct and define [BOR]’s processes for the operation, 25 maintenance, and use of its projects and facilities.” 26 27 at In further explaining the significance of the policies and Id. at 2. “Those in the Program series,” such as the Id. As the foregoing amply demonstrates, the D&Ss and policies which BOR allegedly violated are not substantive rules. - 53 - They are 1 pronouncements of BOR’s policies and practices regarding 2 concessions management. 3 heavy emphasis on the internal workings of the BOR as is evidenced 4 by the fact that those items “establish and document [BOR]-wide 5 methods of doing business.” 6 those “program” policies and D&Ss “primarily direct and define 7 [BOR’s] processes[.]” 8 has little difficulty finding that the D&Ss and policies in count 9 one constitute “statements of policy or rules of agency Overall, the D&Ss and policies place a Id. at 1 (emphasis added). Id. at 2 (emphasis added). Likewise, Hence, the court 10 organization, procedure or practice[.]” See 11 Service Workers, 936 F.2d at 1554 (internal quotation marks and 12 citations omitted). 13 ‘legislative-type’ rules enforceable in federal court against the 14 [BOR].” 15 Multnomah Legal They do not “purport[] to prescribe See Rank v. Nimmo, 677 F.2d 692, 698 (9th Cir. 1982). Turning to the promulgation issue, BOR acknowledges that its 16 Manual is “made available to the public, principally through [its] 17 website[.]” BOR Resp. (doc. 114) at 22:24. 18 availability, because the Manual “is developed and promulgated 19 entirely through an internal agency process, and is not made 20 available for public review and comment through formal rulemaking 21 or any other public process[,]” BOR contends that the D&Ss and 22 policies therein are not binding, enforceable agency rules. 23 22:24-27. 24 Despite that Id. at Plaintiffs challenge that assertion because “it appears that 25 BOR publishes, and accepts public comment about[] draft [D&Ss] 26 prior to adoption” on its website. 27 (footnote omitted) (emphasis added). - 54 - Pl. Reply (doc. 118) at 9 This acceptance of public 1 comments, from plaintiffs’ standpoint, “indicates that the [D&Ss] 2 are binding, not merely policy.” 3 adheres to the view that its Manual is the result of an “internal 4 agency process and not subject to public comment.” 5 134) at 11:27-28. 6 governed by the formal notice and comment procedures of section 553 7 of the APA.14 8 maintain a cause of action against it for alleged violations of the 9 D&Ss and policies in BOR’s Manual. Id. at 10:1-2. In its reply, BOR BOR Reply (doc. As such, BOR explains that its Manual is not Therefore, BOR reasons that plaintiffs cannot 10 The court is fully cognizant that BOR’s website invites 11 “stakeholders to submit comments” regarding “DRAFT Polic[ie]s or 12 [D&Ss]” by us[ing] the links below.” 13 1 (emphasis in original). 14 review and consider the comments received during the revision 15 process[.]” Id. 16 provide responses to submitted comments[,] however.” 17 purpose of this dissemination is thus very different from 18 dissemination allowing for “public scrutiny and comment” under the 19 APA's formal rule making procedures. 20 aptly put it in Rank, “[N]ot all agency policy pronouncements which 21 find their way to the public can be considered regulations 22 enforceable in federal court.” 23 omitted). 24 BOR’s policies or D&Ss upon which they are relying were published 25 in the Federal Register - a at That website explains that BOR “will BOR unequivocally advises that it “will not Id. The As the Ninth Circuit so Rank, 677 F.2d at 698 (citation Especially because plaintiffs have not shown that any of critical aspect of promulgation, and a 26 14 27 That section exempts from the APA formal notice-and-comment procedure, “interpretative rules, general statements of policy, or rules of agency organization, procurement, or practice[.]” 5 U.S.C. § 553(A) (West 2007). - 55 - 1 hallmark of a substantive rule - those items do not have the full 2 force and effect of law. 3 In a final effort to prove that the policies and D&Ss in BOR’s 4 Manual are binding, plaintiffs resort to a 1998 letter from BOR to 5 the County. 6 it “confirms” that BOR intended its concession management D&Ss to 7 be binding. 8 give those D&Ss the full force and effect of law. 9 BOR approves the County’s issuance of a RFP for a marina complex at The import of that letter, plaintiffs believe, is that Pl. Reply (doc. 118) at 9:9. Hence, the court should In that letter, 10 LPRP, “which is to be issued on April 20, 1998[.]” 11 exh. 6 thereto at 1. 12 upon the penultimate paragraph in that letter, stating that “It is 13 important that the [County] adhere to” the enclosed D&Ss “during 14 the RFP and selection process for the marina concessionaire.” 15 Even if admissible,15 this reminder by BOR, approximately seven 16 years before the events complained of in count one, does not 17 establish its D&Ss and policies have the full force and effect of 18 law. 19 PSOF (doc.89), More specifically, plaintiffs are relying Id. In sum, even if plaintiffs were successful on their argument 20 that BOR violated its Manual by not ensuring the County’s 21 compliance therewith, and by approving the UMA, because they have 22 not shown that that Manual has the full force and effect of law, 23 violations of the Manual’s terms are not enough to prove that the 24 UMA is invalid. See Frazier v. United States, 79 Fed. Cl. 148, 164 25 26 27 15 This letter pertains to the 1998 RFP, which is not the subject of count one. It is thus irrelevant and so inadmissible under Fed. R. Evid. 402. And because the court “may only consider admissible evidence on a motion for summary judgment[,]” it cannot consider this letter. See Ballen v. City of Redmond, 466 F.3d 736, 745 (9th Cir. 2006) (citation omitted). - 56 - 1 (2007)(emphasis added) (and cases cited therein), aff’d without 2 published opinion, 301 Fed.Appx. 974 (Fed. Cir. 2998) (“Even if the 3 court had been convinced that something in the bonus points 4 provision of the prospectus violated the ‘fair competition’ 5 pronouncement in [BOR’s] manual, plaintiffs have not alleged, and 6 have certainly not proved, that the manual carries the force of 7 law.); see also Infrastructure Defense Technologies, LLC v. United 8 States, 81 Fed.Cl. 375, 397 (2008) (citations omitted) (defense 9 contractor in pre-award bid challenge could not rely upon 10 Department of Defense Directive because it did “not establish[] 11 that the Directive has the effect of a statute or regulation such 12 that acting inconsistently with its provisions would constitute 13 grounds to set aside or enjoin th[at] solicitation[]”). 14 differently, even if shown, a violation of BOR’s policies and D&Ss 15 “would not constitute arbitrary and capricious agency action” by 16 BOR because those policies and D&Ss lack the force and effect of 17 law. 18 840 (1999) (citation omitted). 19 Put See Labat-Anderson, Inc. v. United States, 42 Fed. Cl. 806, The fundamental weakness with count one is that plaintiffs 20 have not shown, and indeed for the reasons set forth above, could 21 not show a statutory, regulatory or policy which BOR violated by 22 approving the UMA. 23 that the BOR acted arbitrarily, capriciously, or abused its 24 discretion in approving the UMA. 25 above, the court finds that BOR and Partners are entitled to 26 summary judgment as to count one. 27 plaintiffs’ motion for summary judgment as to that count. Absent such a violation, plaintiffs cannot show Thus, for the reasons set forth Conversely, the court must deny - 57 - 1 2 IV. Motions to Strike and Supplement Administrative Record With one exception,16 resolution of the parties’ summary 3 judgment motions did not require the court to resort to any 4 documents beyond the Administrative Record. 5 DENIES as moot the motions to strike (docs. 106; 107 and 124), as 6 well as plaintiffs’ motion to supplement the administrative record 7 (doc. 87). 8 Therefore, the court Conclusion 9 For the reasons set forth above, the court hereby ORDERS that: 10 (1) “Plaintiff’s Motion to Supplement Administrative Record” (doc. 87) is DENIED as moot; 11 (2) Plaintiffs “Motion for Summary Judgment” (doc. 88) is DENIED; 12 13 (3) “Federal Defendants’ Motion to Strike Extra Record Declarations” (doc. 106) is DENIED as moot; 14 (4) “Marina Partners’ Motion to Strike Plaintiffs’ Motion for Summary Judgment, Separate Statement of Facts, and Its Attached Exhibits” (doc. 107) is DENIED as moot; 15 16 (5) “Marina Partners’ Counter Motion for Summary Judgment” (doc. 110) is GRANTED; 17 18 (6) “Federal Defendants’ Cross-Motion for Summary Judgment on Count One of the First Amended Complaint” (doc. 114) is GRANTED; and 19 20 (7) “Plaintiffs’ Motion to Strike Exhibits 1 and 3" (doc. 124) is DENIED as moot. 21 22 23 24 IT IS FURTHER ORDERED that a Joint Proposed Pretrial Order shall be lodged by April 20, 2009. IT IS FURTHER ORDERED setting a Pretrial Conference on May 11, 25 26 27 16 The court did refer to one document not in the Administrative Record - the 1998 letter from BOR to the County. However, because it was irrelevant, that letter did not impact the court’s analysis. - 58 - 1 2009 at 10:30 a.m., in Courtroom 606, Sixth Floor, Sandra Day 2 O’Connor United States Courthouse, 401 West Washington Street, 3 Phoenix, Arizona. 4 will be set at the Pretrial Conference. 5 A trial date and any other necessary deadlines DATED this 20th day of March, 2009. 6 7 8 9 10 11 12 13 14 15 Copies to counsel of record 16 17 18 19 20 21 22 23 24 25 26 27 - 59 -

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