FRIENDS OF IRONBRIDGE PARK v. BABBITT
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 98-2373
July 22, 1999

Friends of Ironbridge Park, David R. Cosby, and Sandra B. Cosby (collectively, "FIP") appeal an order of the district court sustaining a decision of the National Park Service (NPS) that NPS approval is not required for the construction of a public golf course and related facilities in a park that was developed in part with funds awarded under § 6 of the Land and Water Conservation Fund Act (LWCFA) of 1965, as amended. *fn1 See 16 U.S.C.A. § 460l -8 (West 1993 & Supp. 1999). FIP contends that the NPS acted arbitrarily and capriciously in determining that such construction would not bring about a change in use that would "significantly contravene the original plans for the area." 36 C.F.R. § 59.3(d) (1998). Concluding that the district court correctly sustained the NPS's decision, we affirm.

I.

The LWCFA was enacted in part to provide funds to assist in the development and preservation of outdoor recreation resources. See 16 U.S.C.A. § 460l-4 (West 1993). The Act limits the ability of grant recipients to convert the area defined in the LWCFA project agreement to other than public outdoor recreation use. See id. § 460l-8(f)(3); 36 C.F.R. § 59.1 (1998). The applicable regulations also require that advance notice be given to the NPS for all proposed facility changes; changes "that significantly contravene the original plans for the area must" receive NPS approval. 36 C.F.R. § 59.3(d). In determining whether a proposed change would constitute a significant contravention of the original plans, "a project area should be viewed in the context of overall use and should be monitored in this context." Id.

In 1984, the United States awarded $270,000 to the Commonwealth of Virginia under the LWCFA for assistance in development of Ironbridge Park in Chesterfield County, Virginia (the County). At that time, the development plan for the park involved the construction of many recreational facilities, including an outdoor amphitheater, a swim and wave pool, a skating rink, a nature center, and parking lots. The plan also called for the provision of some open space for general recreational use. The grant was awarded to the Commonwealth to be used for the first phase of development, the construction of "picnic areas, sports and playfields, trails and support facilities." J.A. 418. Although the County completed Phase I of the development, several of the other facilities identified in the development plan--including the amphitheater, nature center, swim and wave pool, and the skating rink--were not constructed. Some of the land that has remained undeveloped is now used by local residents for hiking and mountain biking.

In 1998, the County decided to lease 150 acres of the undeveloped land for construction of a public golf course and related facilities. The County notified the Commonwealth of the proposal, and the Commonwealth in turn notified the NPS pursuant to the postcompletion requirements outlined in the applicable regulation. See 36 C.F.R. § 59.3. After reviewing the materials submitted by the Commonwealth, the NPS concluded that at the time of the approval of the LWCFA project, "there was a clear indication that additional recreation facilities were expected to be developed in future phases" throughout the park and that the proposed golf facility was "not inconsistent with nor [did] it contravene the original intent of" the project. J.A. 537. The NPS therefore decided that federal agency approval of the proposed golf facility was not required.

FIP subsequently initiated this action, seeking a declaration that approval of the NPS is indeed required before the golf facility may be constructed. See 5 U.S.C.A. § 704 (West 1996) (providing for judicial review of final agency decisions). Following a bench trial, the district court sustained the NPS's decision. In so doing, the court emphasized that although construction of the golf facility would displace some hiking and biking trails, other trails would remain, and that even if the master plan with the golf facility was completed, over 50 percent of the park would remain undeveloped.

II.

We must set aside the agency action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C.A. § 706(2)(A) (West 1996). Under this highly deferential standard, the agency action will be sustained if the record reveals a rational basis for the decision. See Trinity Am. Corp. v. United States EPA, 150 F.3d 389, 395 (4th Cir. 1998).

FIP argues that the NPS acted arbitrarily and capriciously in deciding that its approval was not necessary for construction of the golf facility because such construction would constitute a change in use that would "significantly contravene the original plans for the area." 36 C.F.R. § 59.3(d). FIP contends that "area" in the context of the regulation refers only to the portion of the project site on which the proposed change will occur, i.e., the 150 acres on which the golf facility is proposed to be built. FIP notes that the regulations specifically require federal agency approval prior to converting an area from a passive to an active use, e.g., from a nature trail to a swimming pool, see id., and argues that is exactly what the County proposes to do here.

The Secretary, on the other hand, contends that"area" in the context of the regulation refers to the entire project area, rather than only to the 150 acres on which the golf facility is proposed to be built. We must defer to an agency's construction of its own regulations unless it is "plainly erroneous or inconsistent with the regulation." Auer v. Robbins, 519 U.S. 452, 461 (1997) (internal quotation marks omitted). The regulations provide support for that interpretation, as the word "area" is used in § 59.1 to refer to the land depicted in the project boundary map. See 36 C.F.R. § 59.1. Here, the land depicted in the boundary map was the entire 400-acre Ironbridge Park. Accordingly, the Secretary's interpretation is neither plainly erroneous nor inconsistent with the regulation, and it therefore is controlling. See Auer, 519 U.S. at 461.

In view of the meaning of "area" as used in the regulations, it is clear that the NPS did not act arbitrarily and capriciously in determining that the construction of the golf facility would not constitute a change in use of the area from passive to active such that § 59.3(d) would require NPS approval of the change. The original plans were for Ironbridge Park to be used for both active and passive purposes. Because construction of the golf facility on 150 acres of the park will not change the mixed character of the park as a whole, the regulations do not require NPS approval before the golf facility can be constructed. See 36 C.F.R. § 59.3(d) ("a project area should be viewed in the context of overall use" (emphasis added)).

III.

In sum, because we conclude that the NPS acted rationally in deciding that its approval was not required regarding the construction of the golf facility, we affirm.

AFFIRMED

Opinion Footnotes

*fn1 FIP brought this action against the Secretary of the Department of the Interior, the Superintendent of the NPS, the company that proposed to construct the golf facility, and various other individuals. For ease of reference, we will refer to these parties collectively as "the Secretary."

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TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY

CHAPTER I--NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR

PART 59--LAND AND WATER CONSERVATION FUND PROGRAM OF ASSISTANCE TO STATES; POST-COMPLETION COMPLIANCE RESPONSIBILITIES

Sec. 59.1 Applicability.

These post-completion responsibilities apply to each area or
facility for which Land and Water Conservation Fund (L&WCF) assistance
is obtained, regardless of the extent of participation of the program in
the assisted area or facility and consistent with the contractural
agreement between NPS and the State. Responsibility for compliance and
enforcement of these provisions rests with the State for both State and
locally sponsored projects. The responsibilities cited herein are
applicable to the area depicted or otherwise described on the 6(f)(3)
boundary map and/or as described in other project documentation approved
by the Department of the Interior. In many instances, this mutually
agreed to area exceeds that actually receiving L&WCF assistance so as to
assure the protection of a viable recreation entity. For leased sites
assisted under L&WCF, compliance with post-completion requirements of
the grant ceases following lease expiration unless the grant agreement
calls for some other arrangement.

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Sec. 59.3 Conversion requirements.

(a) Background and legal requirements. Section 6(f)(3) of the L&WCF
Act is the cornerstone of Federal compliance efforts to ensure that the
Federal investments in L&WCF assistance are being maintained in public
outdoor recreation use. This section of the Act assures that once an
area has been funded with L&WCF assistance, it is continually maintained
in public recreation use unless NPS approves substitution property of
reasonably equivalent usefulness and location and of at least equal fair
market value.
(b) Prerequisites for conversion approval. Requests from the project
sponsor for permission to convert L&WCF assisted properties in whole or
in part to other than public outdoor recreation uses must be submitted
by the State Liaison Officer to the appropriate NPS Regional Director in
writing. NPS will consider conversion requests if the following
prerequisites have been met:
(1) All practical alternatives to the proposed conversion have been
evaluated.
(2) The fair market value of the property to be converted has been
established and the property proposed for substitution is of at least
equal fair market value as established by an approved appraisal
(prepared in accordance with uniform Federal appraisal standards)
excluding the value of structures or facilities that will not serve a
recreation purpose.
(3) The property proposed for replacement is of reasonably
equivalent usefulness and location as that being converted. Dependent
upon the situation and at the discretion of the Regional Director, the
replacement property need not provide identical recreation experiences
or be located at the same site, provided it is in a reasonably
equivalent location. Generally, the replacement property should be
administered by the same political jurisdiction as the converted
property. NPS will consider State requests to change the project sponsor
when it is determined that a different political jurisdiction can better
carry out the objectives of the original project agreement. Equivalent
usefulness and location will be determined based on the following
criteria:
(i) Property to be converted must be evaluated in order to determine
what recreation needs are being fulfilled by the facilities which exist
and the types of outdoor recreation resources and opportunities
available. The property being proposed for substitution must then be
evaluated in a similar manner to determine if it will meet recreation
needs which are at least like in magnitude and impact to the user
community as the converted site. This criterion is applicable in the
consideration of all conversion requests with the exception of those
where wetlands are proposed as replacement property. Wetland areas and
interests therein which have been identified in the wetlands provisions
of the Statewide Comprehensive Outdoor Recreation Plan shall be
considered to be of reasonably equivalent usefulness with the property
proposed for conversion regardless of the nature of the property
proposed for conversion.
(ii) Replacement property need not necessarily be directly adjacent
to or close by the converted site. This policy provides the
administrative flexibility to determine location recognizing that the
property should meet existing public outdoor recreation needs. While
generally this will involve the selection of a site serving the same
community(ies) or area as the converted site, there may be exceptions.
For example, if property being converted is in an area undergoing major
demographic change and the area has no existing or anticipated future
need for outdoor recreation, then the project sponsor should seek to
locate the substitute area in another location within the jurisdiction.
Should a local project sponsor be unable to replace converted

[[Page 254]]

property, the State would be responsible, as the primary recipient of
Federal assistance, for assuring compliance with these regulations and
the substitution of replacement property.
(iii) The acquisition of one parcel of land may be used in
satisfaction of several approved conversions.
(4) The property proposed for substitution meets the eligibility
requirements for L&WCF assisted acquisition. The replacement property
must constitute or be part of a viable recreation area. Unless each of
the following additional conditions is met, land currently in public
ownership, including that which is owned by another public agency, may
not be used as replacement land for land acquired as part of an L&WCF
project:
(i) The land was not acquired by the sponsor or selling agency for
recreation.
(ii) The land has not been dedicated or managed for recreational
purposes while in public ownership.
(iii) No Federal assistance was provided in the original acquisition
unless the assistance was provided under a program expressly authorized
to match or supplement L&WCF assistance.
(iv) Where the project sponsor acquires the land from another public
agency, the selling agency must be required by law to receive payment
for the land so acquired.

In the case of development projects for which the State match was not
derived from the cost of the purchase or value of a donation of the land
to be converted, but from the value of the development itself, public
land which has not been dedicated or managed for recreation/conservation
use may be used as replacement land even if this land is transferred
from one public agency to another without cost.
(5) In the case of assisted sites which are partially rather than
wholly converted, the impact of the converted portion on the remainder
shall be considered. If such a conversion is approved, the unconverted
area must remain recreationally viable or be replaced as well.
(6) All necessary coordination with other Federal agencies has been
satisfactorily accomplished including, for example, compliance with
section 4(f) of the Department of Transportation Act of 1966.
(7) The guidelines for environmental evaluation have been
satisfactorily completed and considered by NPS during its review of the
proposed 6(f)(3) action. In cases where the proposed conversion arises
from another Federal action, final review of the State's proposal shall
not occur until the NPS Regional office is assured that all
environmental review requirements related to that other action have been
met.
(8) State intergovernmental clearinghouse review procedures have
been adhered to if the proposed conversion and substitution constitute
significant changes to the original Land and Water Conservation Fund
project.
(9) The proposed conversion and substitution are in accord with the
Statewide Comprehensive Outdoor Recreation Plan (SCORP) and/or
equivalent recreation plans.
(c) Amendments for conversion. All conversions require amendments to
the original project agreements. Therefore, amendment requests should be
submitted concurrently with conversion requests or at such time as all
details of the conversion have been worked out with NPS. Section 6(f)(3)
project boundary maps shall be submitted with the amendment request to
identify the changes to the original area caused by the proposed
conversion and to establish a new project area pursuant to the
substitution. Once the conversion has been approved, replacement
property should be immediately acquired. Exceptions to this rule would
occur only when it is not possible for replacement property to be
identified prior to the State's request for a conversion. In such cases,
an express commitment to satisfy section 6(f)(3) substitution
requirements within a specified period, normally not to exceed one year
following conversion approval, must be received from the State. This
commitment will be in the form of an amendment to the grant agreement.
(d) Obsolete facilities. Recipients are not required to continue
operation of a particular facility beyond its useful life. However, when
a facility is declared obsolete, the site must nonetheless be maintained
for public outdoor recreation following discontinuance of

[[Page 255]]

the assisted facility. Failure to so maintain is considered to be a
conversion. Requests regarding changes from a L&WCF funded facility to
another otherwise eligible facility at the same site that significantly
contravene the original plans for the area must be made in writing to
the Regional Director. NPS approval must be obtained prior to the
occurrence of the change. NPS approval is not necessarily required,
however, for each and every facility use change. Rather, a project area
should be viewed in the context of overall use and should be monitored
in this context. A change from a baseball field to a football field, for
example, would not require NPS approval. A change from a swimming pool
with substantial recreational development to a less intense area of
limited development such as a passive park, or vice versa, would,
however, require NPS review and approval. To assure that facility
changes do not significantly contravene the original project agreement,
NPS shall be notified by the State of all proposed changes in advance of
their occurrence. A primary NPS consideration in the review of requests
for changes in use will be the consistency of the proposal with the
Statewide Comprehensive Outdoor Recreation Plan and/or equivalent
recreation plans. Changes to other than public outdoor recreation use
require NPS approval and the substitution of replacement land in
accordance with section 6(f)(3) of the L&WCF Act and paragraphs (a)
through (c) of this section.
[51 FR 34184, Sept. 25, 1986, as amended at 52 FR 22747, June 15, 1987]