Heart 6 Ranch, LLC v. Zinke

• Court: District Court, District of Columbia
• Decided: February 5, 2019
• Docket: Civil Action No. 2017-2711
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

HEART 6 RANCH, LLC, Plaintiff Civil Action No. 17-2711 (CKK) v. DAVID BERNHARDT, et al.,1 Defendants

MEMORANDUM OPINION (February 5, 2019)

This is an Administrative Procedure Act (“APA”) case challenging the manner by which

the National Park Service (“NPS”) has reallocated the rights to provide oversnow vehicle shuttle

service transportation events in Yellowstone National Park. Before the Court is Plaintiff’s [23]

Motion for Judgment on the Administrative Record and Defendants’ [25] Cross-Motion for

Summary Judgment on the Administrative Record. Upon consideration of the pleadings,2 the

relevant legal authorities, and the record as it currently stands, the Court DENIES Plaintiff’s

Motion for Summary Judgment and GRANTS Defendants’ Cross-Motion for Summary

Judgment. The Court concludes that NPS did not violate the APA by reallocating the shuttle

service transportation events in a closed process among existing concessioners. The reallocation

1 Pursuant to Fed. R. Civ. P. 25(d), David Bernhardt is substituted in his official capacity as Acting United States Secretary of the Interior. 2 The Court’s consideration has focused on the following documents: • Pl.’s Mot. for Judgment on the Admin. Record (“Pl.’s Mot.”), ECF No. 23; • Defs.’ Cross-Mot. for Summary Judgment and Opp’n to Pl.’s Mot. for Judgment on the Admin. Record (“Defs.’ Mot.”), ECF No. 25; • Pl.’s Response to Defs.’ Opp’n to Pl.’s Mot. for Summary Judgment and Pl.’s Opp’n to Defs.’ Cross-Mot. for Summary Judgment (“Pl.’s Response”), ECF No. 27; • Defs.’ Reply in Support of Cross-Mot. for Summary Judgment (“Defs.’ Reply”), ECF No. 29. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f). 1 of these transportation events did not materially alter the existing concessioner’s contract;

accordingly, a public solicitation process was unnecessary. And, because it was permissible for

NPS to exclude Plaintiff and restrict the solicitation process to existing concessioners, Plaintiff

does not have standing to challenge the specific method by which NPS reallocated these

transportation events.

I. BACKGROUND In 2013, NPS issued a Prospectus soliciting offers for concessioners to provide guided

interpretive oversnow vehicle tours in Yellowstone National Park. AR1. Twenty-three

concession contracts were awarded pursuant to the Prospectus, including ten contracts for the

South entrance of Yellowstone. AR10. Each contract allotted to the concessioner one or more

daily oversnow vehicle “transportation event.” Id.

Plaintiff had submitted proposals to obtain concession contracts for the South entrance as

Plaintiff had previously provided oversnow vehicle services in Yellowstone. However, Plaintiff

was not granted a contract. Instead, with respect to the South entrance contracts, NPS awarded

one contract to DTRS Jackson Hole, LLC dba Four Seasons Jackson Hole, seven contracts to

Forever Resorts, LLC dba Scenic Safaris, and two contracts to Teton Science Schools. AR170.

The contract awarded to Four seasons included two daily transportation events, including

one daily snowmobile event. AR356. In October 2014, Four Seasons requested that its contract

be terminated, so NPS terminated the contract. AR401. Various existing concessioners expressed

interest in obtaining the unused transportation events. AR402-08, AR444-45. Nevertheless, the

two transportation events remained unused for the 2014-2015 and 2015-2016 winter seasons.

AR421, AR429.

After hearing that NPS was assessing interest in the two unused transportation events,

Plaintiff contacted NPS regarding the transportation events in July 2016. AR475. Plaintiff was

2 told that no decision had been made and that “[w]e will add you to the list to be notified of any

future opportunities.” AR476.

In October 2016, NPS notified existing concessioners already holding contracts that it

had decided to reassign the two unused transportation events “on an experimental basis for one

season” and asked interested concessioners to participate in a lottery to reallocate the

transportation events. AR478-79. NPS advised concessioners that “[t]he events can be used for

one-way shuttle service to and from Old Faithful, for guided interpretive tours that included one-

way service to and from Old Faithful, or a combination of the two.” AR478. NPS also

announced that one of the events would be used for the West entrance rather than the South

entrance. AR479. As Plaintiff was not a current concessioner, Plaintiff did not receive a

notification of NPS’s decision to reallocate the unused transportation events.

In response, various concessioners requested that they be considered in awarding the

unused transportation events. AR482, AR519, AR525. The number of lottery entries was

determined by the number of contracts each concessioner already held. AR479. In November

2016, Scenic Safaris was selected through the lottery process to receive the unused transportation

event for the South entrance. AR532. The lottery process was apparently conducted by pulling

numbers out of a hat. AR530, AR532.

In December 2016, NPS issued an addendum to Scenic Safari’s operating plan to add one

transportation event for the 2016-2017 winter season. AR577-79. But, Scenic Safari was notified

that if NPS continued the experimental service, Scenic Safari would continue operating the

transportation event. AR576. The addendum stated that the transportation event was to be used

primarily for one-way shuttle services between the South entrance and Old Faithful. AR578.

3 In July 2017 and September 2017, Plaintiff contacted NPS regarding the unused

transportation events from the terminated Four Seasons contract. And in October 2017, NPS

contacted Plaintiff declining to award Plaintiff a concession contract. Compl., ECF No. 1, Dec.

of Frank Hubert Chapman II, ¶ 12.

In December 2017, Plaintiff filed this lawsuit challenging the method by which NPS

reallocated the unused transportation events from the terminated Four Seasons contract. See

generally Compl., ECF No. 1. Plaintiff moved for a Temporary Restraining Order, but the Court

declined to grant one. See generally Jan. 4, 2018 Order, ECF No. 9. The parties subsequently

moved for summary judgment.

II. LEGAL STANDARD Under Rule 56(a) of the Federal Rules of Civil Procedure, “[t]he court shall grant

summary judgment if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). However,

“when a party seeks review of agency action under the APA [before a district court], the district

judge sits as an appellate tribunal. The ‘entire case’ on review is a question of law.” Am.

Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001). Accordingly, “the standard

set forth in Rule 56[ ] does not apply because of the limited role of a court in reviewing the

administrative record .... Summary judgment is [ ] the mechanism for deciding whether as a

matter of law the agency action is supported by the administrative record and is otherwise

consistent with the APA standard of review.” Southeast Conference v. Vilsack, 684 F. Supp. 2d

135, 142 (D.D.C. 2010).

The APA “sets forth the full extent of judicial authority to review executive agency

action for procedural correctness.” Fed. Commc’n Comm’n v. Fox Television Stations, Inc., 556

U.S. 502, 513 (2009). It requires courts to “hold unlawful and set aside agency action, findings,

4 and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A). “This is a ‘narrow’ standard of review as courts

defer to the agency's expertise.” Ctr. for Food Safety v. Salazar, 898 F. Supp. 2d 130, 138

(D.D.C. 2012) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983)). However, an agency is still required to “examine the relevant data and

articulate a satisfactory explanation for its action including a rational connection between the

facts found and the choice made.” Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43 (internal quotation

omitted). “Moreover, an agency cannot ‘fail[ ] to consider an important aspect of the problem’ or

‘offer[ ] an explanation for its decision that runs counter to the evidence’ before it.” Dist. Hosp.

Partners, L.P. v. Burwell, 786 F.3d 46, 57 (D.C. Cir. 2015) (quoting Motor Vehicle Mfrs. Ass'n,

463 U.S. at 43).

III. PROCESS FOR GRANTING INJUNCTIVE RELIEF In its motion, Plaintiff asserts that it “seeks injunctive relief whereby NPS awards it a

concession contract for the unused transportation event at the South Entrance for which it was

affirmatively prevented from competing because of NPS’s restricted lottery approach.” Pl.’s

Mot., ECF No. 23, 13. Plaintiff alternatively “requests that NPS be enjoined from continuing the

‘experiment’ for the upcoming season at the South Entrance and for the remaining term of the

affected contract, and that NPS be directed to acquire the new services at the South Entrance

through the required public competition process such that Plaintiff has a fair opportunity to

compete.” Id. at 13-14. Plaintiff claims that the appropriate test for granting such relief is

whether it has established that it “will ‘succeed on the merits, that [it] is likely to suffer

irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its]

favor, and that an injunction is in the public interest.’” Id. at 13 (quoting Winter v. Nat’l Res. Def.

Council, 555 U.S. 7, 20 (2008)).

5 Plaintiff has misstated the standard for granting injunctive relief at this stage in the

litigation. Plaintiff has filed a motion for summary judgment on the administrative record.

Despite this, Plaintiff organizes its motion for summary judgment around the standard for

granting a preliminary injunction. And, as Plaintiff has already been denied a temporary

restraining order and is now moving for summary judgment on the administrative record, this

case is well past its preliminary stage. See January 4, 2018 Order, ECF No. 9 (denying a

temporary restraining order). At the summary judgment stage, the question is no longer whether

or not “Plaintiff will succeed on the merits.” Pl.’s Mot., ECF No. 23, 14. At the summary

judgment stage, the question is whether or not Plaintiff has succeeded on the merits. And, only if

Plaintiff has succeeded on the merits will the Court determine whether or not injunctive relief is

warranted.

Accordingly, the Court will first decide whether or not Plaintiff prevails on its motion for

summary judgment on the administrative record. If Plaintiff prevails on its motion for summary

judgment, then the Court will assess whether or not Plaintiff is entitled to injunctive relief. And,

Plaintiff is entitled to injunctive relief only if Plaintiff shows “‘(1) that it has suffered an

irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate

to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff

and defendant, a remedy in equity is warranted; and (4) that the public interest would not be

disserved by a permanent injunction.’” Morgan Drexen, Inc. v. Consumer Fin. Prot. Bureau, 785

F.3d 684, 694 (D.C. Cir. 2015) (quoting eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391

(2006)).

6 IV. NPS’S DECSION TO REALLOCATE THE TRANSPORTATION EVENT THROUGH A CLOSED PROCESS While the parties cite numerous interrelated statutes and regulations, the parties’ core

dispute is easily summarized: did NPS violate the APA when it reallocated the transportation

events associated with the terminated Four Seasons contract to other existing concessioners

without engaging in a public solicitation process?3 Plaintiff argues that NPS violated the APA

because the addition of a shuttle service transportation event was a major and material change to

the concessioner’s existing contract. Because the reallocation was a major and material change,

Plaintiff contends that NPS was required to offer the transportation event by public solicitation

rather than by amending existing contracts. Defendants disagree, arguing that the reallocation

was a minor adjustment to the concessioner’s contract so that NPS was permitted to make the

reallocation as it deemed appropriate without engaging in a new, public solicitation process.

For reasons that will be explained further below, the Court agrees with Defendants and

concludes that NPS’s failure to hold a public solicitation process to reallocate the transportation

events associated with the terminated Four Seasons contract did not violate the APA.

NPS was authorized to reallocate the unused transportation events resulting from the

termination of the Four Seasons contract by allocating those events to concessioners with

existing contracts. The contracts at issue are subject to the terms of the National Park Service

Concessions Management Improvement Act of 1998 (“the 1998 Act”) and its implementing

3 Initially, Plaintiff also appeared to challenge NPS’s transferring of one transportation event from the South entrance of Yellowstone to the West entrance as part of the reallocation of the terminated Four Seasons contract. But, Plaintiff does not address this issue in its motion and appears no longer to challenge the transfer. See Pl.’s Mot., ECF No. 23, 13 (“Plaintiff seeks only an award of a contract for the remaining event at the South Entrance.”). Moreover, the Court finds that the transfer of the transportation event to the West entrance was permissible under regulation as a limited change involving only one transportation event. See 36 C.F.R. § 7.13(l)(10)(xiii) (allowing “limited changes to the transportation events allocated to each entrance”). 7 regulations. 16 U.S.C. § 5951 et seq. (1988 Act); 36 C.F.R. Part 51 (regulations). Under

regulations issued pursuant to the 1998 Act, “[a] concessioner that is allocated park area

entrance, user days or similar resource use allocations for the purposes of a concession contract

will not obtain any contractual or other rights to continuation of a particular allocation level

pursuant to the terms of a concession contract or otherwise. Such allocations will be made,

withdrawn and/or adjusted by the Director from time to time in furtherance of the purposes of

this part.” 36 C.F.R. § 51.76.

In interpreting this regulation, the Court finds that a transportation event is the type of

“park area entrance, user day[], or similar resource use allocation[]” that NPS is permitted to

make, withdraw, or adjust. Accordingly, when NPS “adjusted” an existing concessioner’s

contract to include an additional shuttle service transportation event, NPS was operating within

the bounds of its operating regulations.

Despite the Court’s finding that it was permissible for NPS to adjust an existing

concessioner’s contract by reallocating a transportation event, Plaintiff has three arguments for

why the Court should not grant Defendants’ motion for summary judgment. First, Plaintiff

argues that the addition of the shuttle service transportation event was a new visitor service

requiring a public solicitation process. Second, Plaintiff contends that NPS failed to consider the

necessary criteria in amending an existing concessioner’s contract to include the new

transportation event. Third, Plaintiff argues that there are material disputes of fact not resolved

by the Administrative Record. The Court will address each argument in turn.

First, Plaintiff argues that shuttle service transportation event was a new visitor service

requiring a public solicitation process. According to Plaintiff, treating the reallocation of the

shuttle service as an amendment to an existing contract “implies that NPS could simply define

8 any action as ‘reallocations’ and avoid having to go through the required public solicitation

process for visitor service requirements.” Pl.’s Mot., ECF No. 23, 16.

The Court disagrees. NPS is prohibited from including “a provision in a concession

contract … [which] provide[s] new or additional visitor services under the terms of a concession

contract.” 36 C.F.R. § 51.76. But, here, the addition of the shuttle service transportation event

was not a “new or additional visitor service.” 36 C.F.R. § 51.76. The existing concessioners were

already contracted to provide transportation events in the form of guided interpretive oversnow

vehicle tours from the South entrance of Yellowstone. AR190. NPS amended an existing

concessioner’s contract to include an additional transportation event in the form of a one-way

shuttle service between Old Faithful and the South Entrance of Yellowstone. AR748. Due to the

similarity between the shuttle service and the oversnow vehicle services that the concessioner

was already contracted to provide, the shuttle service was not a new visitor service. Instead, the

Court finds that the reallocation of the shuttle service transportation event was a permissible

adjustment to an existing concessioner’s contract.

Supporting the Court’s conclusion that the shuttle service was not a new service, shuttle

service transportation events were contemplated in the existing concessioners’ original

Prospectus. The Prospectus stated, “[i]n addition to the required services presented above, the

Concessioner will have discretion to provide services authorized in the Draft Contract. Exhibit

12-B is a summary of authorized services.” AR28. Exhibit 12-B lists “Guided OSV Shuttle

Trips” as an authorized service. Id. “Guided OSV Shuttle Trips” were also included in the Draft

Contract contained in the Prospectus and in the contracts actually awarded. AR71, AR261.

Accordingly, as shuttle services were included in the Prospectus, the Draft Contract, and the

actually-awarded contracts, shuttle services were not a new visitor service.

9 Plaintiff counters that the shuttle services were a new service because “Guided OSV

shuttle trips” were an authorized service rather than a required service. AR 28. But, Plaintiff fails

to explain why being an authorized service, as opposed to a required service, would make the

shuttle services a new service. Additionally, Plaintiff argues that the shuttle services were a new

service because shuttle services had previously been performed by a different concessioner under

a different contract. AR444. But, again Plaintiff fails to explain why the fact that a different

concessioner previously performed shuttle services makes shuttle services a “new” service under

the relevant concessioner’s contract.

For these reasons, the Court concludes that the shuttle service transportation event was

not a new visitor service. Accordingly, NPS acted permissibly in amending an existing

concessioner’s contract to include the shuttle service transportation event.

But, even if the Court were to agree with Plaintiff and conclude that the addition of the

shuttle service transportation event was a new visitor service, NPS’s actions in holding a closed

solicitation process would still be permissible. Under the 1988 Act’s regulations, NPS is required

to engage in a new, public solicitation process when an additional service would “materially

amends[]” a prospectus and the contract based on that prospectus or when an addition “does not

incorporate the terms and conditions of the concession contract as set forth in the prospectus.” 36

C.F.R. § 51.19. 4 However, “[a] concession contract may be amended to authorize the

concessioner to provide minor additional visitor services that are a reasonable extension of the

existing services.” 36 C.F.R. § 51.76.

4 The Court notes that 36 C.F.R. § 51.19 applies to the awarding of concession contracts. As the Court concludes that the reallocation of the shuttle service transportation event was an amendment to the concessioner’s contract rather than an award of a new contract, 36 C.F.R. § 51.19 would not apply to the actions taken by NPS. 10 Insofar as the shuttle service is considered a new service, the Court finds that it is a minor

additional service and a reasonable extension of the oversnow vehicle tours which were already

being provided. 36 C.F.R. § 51.76. Similarly, the addition of this new service did not materially

amend the contract of the existing concessioner as the concessioner was already required to

provide oversnow vehicle services. 36 C.F.R. § 51.19. Accordingly, NPS was authorized to

amend existing contracts to include this minor additional service rather than hold a public

solicitation process.

The Court’s conclusion that the addition of the shuttle service transportation event was

not a material change is supported by the regulatory definition of “transportation event.” The

applicable regulation defines “transportation event” as “a snowmobile transportation event or a

snowcoach transportation event.” 36 C.F.R. § 7.13(l)(2). These events are in turn defined by the

number of snowmobiles or snowcoaches travelling together. Id. Accordingly, the defining

characteristic of a “transportation event” is not its purpose but is instead the number of

snowmobiles or snowcoaches traveling together at a given time. Under this definition of

“transportation event,” the difference between an interpretive tour and a shuttle service is

immaterial. Accordingly, amending an existing concessioner’s contract for interpretive tours to

also include a shuttle service was a reasonable extension of the transportation events already

offered under the contract.

The Court also notes that the original Prospectus explicitly advised concessioners that

underused transportation events could be reallocated. See AR16 (“The Service reserves the right

to reallocate consistently underused transportation events from the Concessioner to other

Concessioners.”), AR30 (same), AR97 (“The Service may take consistently underused allocated

transportation events from the Concessioner based on a seasonal or multi-seasonal average use.

11 These allocations would revert back to the Service and may be allocated to other concessioners

within the same entrance.”). The transportation events at issue here were underused as they had

not been used during the 2014-2015 or the 2015-2016 winter seasons. AR 421, AR 429. That

existing concessioners were on notice that these underused transportation events could be

redistributed to them supports the Court’s finding that the reallocation of the transportation

events was not a material change but was instead a “minor additional visitor service[] that [was]

a reasonable extension of the existing services.” 36 C.F.R. § 51.76; see AT&T Commc’ns v.

Wiltel, Inc., 1 F.3d 1201, 1207 (Fed. Cir. 1993) (explaining in the context of procurement

contracts that a change is within the scope of the original contract if “the solicitation for the

original contract adequately advised offerors of the potential for the type of changes during the

course of the contract that in fact occurred … [and if] the modification is of a nature which

potential offerors would reasonably have anticipated” (internal quotation marks omitted)).

For the foregoing reasons, the Court concludes that, even if the shuttle service

transportation event was a new service, its addition was a permissible minor amendment to the

existing concessioner’s contract rather than a material change requiring a public solicitation

process.

Second, Plaintiff also argues that the Court should not grant Defendants’ cross-motion for

summary judgment because NPS violated the 1988 Act by reallocating the shuttle service

transportation event without considering “the facilities, services, or capital investment required

to be provided by the concessioner, and measures necessary to ensure the protection,

conservation, and preservation of resources of the national park.” Pl.’s Mot., ECF No. 23, 18

(citing 54 U.S.C. § 101913 and 36 C.F.R. § 51.17). Plaintiff similarly faults NPS for failing to

consider the franchise fee. But, the legal authorities to which Plaintiff cites are relevant only if

12 NPS were awarding a new concession contract. See 54 U.S.C. § 101913 (entitled “Award of

concession contracts”); 36 C.F.R. § 51.17 (in Subpart C- Solicitation, Selection and Award

Procedures). And, the Court has already determined that NPS was not awarding a new

concession contract and was instead only amending an existing concession contract.

Accordingly, NPS was not required to consider the criteria asserted by Plaintiff in reallocating

the shuttle service transportation event to an existing concessioner.

Third, Plaintiff argues that Defendants are not entitled to summary judgment because

“Defendant’s arguments are based on material facts that are in dispute and that are not

established by the Administrative Record.” Pl.’s Response, ECF No. 27, 3-5. Plaintiff

specifically claims that two documents central to Defendants’ arguments are not contained in the

Administrative Record. First, Plaintiff asserts that the Administrative Record is missing the

actual contract amendment by which the existing concessioner’s contract was modified to add

the shuttle service transportation event. Second, Plaintiff contends that Defendants have no

documentation regarding whether or not NPS extended the shuttle services for only one season

or for the remainder of the concession contract through 2024. Despite Plaintiff’s arguments, the

Court concludes that materials facts are not omitted from the Administrative Record so as to

preclude granting Defendants summary judgment.

First, Plaintiff is correct that the Administrative Record does not contain the actual

contract amendment reallocating the transportation event to the existing concessioner’s contract.

But, the Administrative Record does contain a draft of that amendment which is the latest

version in NPS’s possession. Defs.’ Reply, ECF No. 29, 2; AR577-79. Plaintiff provides no

argument as to why the draft amendment is insufficient nor does Plaintiff identify any parts of

the draft amendment which it believes were altered in the final contract. Plaintiff’s mere

13 speculation that there may have been some difference is not sufficient to defeat Defendants’

motion for summary judgment. See Brown v. Brody, 199 F.3d 446, 458-59 (D.C. Cir. 1999)

(explaining that speculation is insufficient to avoid summary judgment).

Second, the omission of documents concerning whether or not NPS extended the shuttle

services for the remainder of the concession contract similarly does not preclude summary

judgment. In this lawsuit, Plaintiff challenges NPS’s modification of the existing concessioner’s

contract to add a transportation event which was reallocated from another concessioner’s

terminated contract. This agency action occurred in 2016. What NPS subsequently did with that

transportation event in future seasons is not challenged in this lawsuit. Accordingly,

documentation on the use of the transportation event in future seasons is not necessary to decide

the parties’ motions for summary judgment and need not have been included in the

Administrative Record. See Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497,

515 (D.C. Cir. 2010) (explaining that an administrative record need not include documents the

agency did not consider in taking the challenged action).

Plaintiff has failed to provide the Court with any material facts that are in dispute due to

omissions from the Administrative Record. Accordingly, the Court will not deny Defendants’

motion for summary judgment on this ground.

In summary, the Court concludes that NPS did not violate the APA by amending an

existing concessioner’s contract to include the shuttle service transportation event as the

reallocation was a permissible adjustment to the contract. And, even if the shuttle service

transportation event were considered a new service, the reallocation was minor and did not

materially amend the existing contract. Accordingly, NPS was not required to hold a public

14 V. NPS’S DECISION TO USE A BLIND LOTTERY AMONG EXISTING CONCESSIONERS For the reasons already given, the Court concludes that NPS did not violate the APA in

using a closed process to reallocate the shuttle service transportation event. And, because NPS

was permitted to use a closed process, which excluded Plaintiff, to reallocate the transportation

event, the Court finds that Plaintiff lacks standing to challenge the particular method by which

NPS reallocated the transportation events among the existing concessioners.

To establish standing, a plaintiff must show (1) that it has suffered an “injury in fact” that

is (2) “caused by the challenged conduct” and which (3) is “redressable through relief sought

from the court.” Safari Club Int’l v. Jewell, 842 F.3d 1280, 1285 (D.C. Cir. 2016) (internal

quotation marks omitted). Here, Plaintiff’s theory of standing is based on the argument that

Plaintiff was deprived of the right to participate in a legally valid process for reallocating the

shuttle service transportation events. See Pl.’s Mot., ECF No. 23, 13 (“A disappointed offeror,

such as Plaintiff has the right to a legally valid procurement process, the deprivation of which

constitutes a cognizable injury.” (internal quotation marks omitted)). Plaintiff’s asserted

deprivation of the right to participate in a legally valid process gave Plaintiff standing to

challenge NPS’s use of a non-public solicitation to reallocate the shuttle service transportation

event.

But, the Court has now concluded that NPS’s decision to limit the reallocation process to

existing concessioners, rather than to expand the process to the general public, was permissible.

Accordingly, Plaintiff, not an existing concessioner, was not legally entitled to participate in the

reallocation process. Because Plaintiff was not legally entitled to participate in the reallocation

process, Plaintiff has no interest in how that non-public process was conducted. See Pl.’s

Response, ECF No. 27, 10 (“Plaintiff … is not challenging whether Lottery was fair to the

15 existing concessioners.”). Accordingly, Plaintiff lacks standing to challenge the method by which

NPS redistributed the transportation events among the existing concessioners in the permissible

closed process. See Cheeks of N. Am., Inc. v. Fort Myer Const. Corp., 807 F. Supp. 2d 77, 92

(D.D.C. 2011) (explaining that an unsuccessful bidder lacked standing to bring suit when its

failure to obtain a contract was not caused by the alleged violation).

Plaintiff argues that there are material facts in dispute as to whether or not Plaintiff has

standing to challenge the NPS action. Specifically, Plaintiff contends that the Administrative

Record contains no documentation that supports the contention that Plaintiff was properly

excluded from the original 2014 competition. See Pl.’s Response, ECF No. 27, 4-5. But, Plaintiff

misunderstands the issue. Plaintiff challenges NPS’s 2016 decision to reallocate the unused

transportation event among existing concessioners in a closed process. Plaintiff does not

challenge NPS’s 2014 refusal to grant Plaintiff a contract in the original, public competition.

Accordingly, documentation relating to Plaintiff’s failure to obtain a contract during the original

2014 competition is not relevant to the Court’s standing analysis.

Because Plaintiff lacks standing to challenge the method by which NPS redistributed the

shuttle service transportation event among the existing concessioners, the Court will not decide

whether or not NPS’s process was permissible. However, the Court notes that it is skeptical that

NPS’s chosen process violated the APA. Many existing concessioners were interested in

obtaining the two available transportation events. AR404-08, AR412, AR420, AR444-45. And

the use of a lottery was a simple, fair, and easy method of reallocating the transportation events

among the existing concessioners. See AR478. There is no evidence that NPS’s chosen method

was arbitrary, capricious, or in violation of existing law.

16 The Court has already decided that NPS’s actions in reallocating the shuttle service

transportation event in a closed process among existing concessioners did not violate the APA.

And, Plaintiff lacks standing to challenge the particular method used to reallocate the

transportation events among existing concessioners in the closed process. Accordingly, Plaintiff

has not shown a violation of the APA and the Court GRANTS Defendants’ motion for summary

judgment and DENIES Plaintiff’s motion for summary judgment.

VI. REQUEST FOR INJUNCTIVE RELIEF Because Plaintiff did not prevail on its motion for summary judgment, Plaintiff is not

entitled to its requested relief, including injunctive relief. As previously explained, Plaintiff seeks

“injunctive relief whereby NPS awards it a concession contract for the unused transportation

event at the South Entrance,” or in the alternative, injunctive relief requiring NPS “to acquire

new services at the South Entrance through the required public competition process such that

Plaintiff has a fair opportunity to compete.” Pl.’s Mot., ECF No. 23, 13-14. Even if Plaintiff had

prevailed on the merits of its motion for summary judgment, the Court would not have exercised

its discretion to grant Plaintiff this injunctive relief.

An “injunction is a matter of equitable discretion; it does not follow from success on the

merits as a matter of course.” Winter, 555 U.S. at 32. In determining whether or not to exercise

its discretion to grant injunctive relief, a court considers if a plaintiff has shown “‘(1) that it has

suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are

inadequate to compensate for that injury; (3) that, considering the balance of hardships between

the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest

would not be disserved by a permanent injunction.’” Morgan Drexen, Inc., 785 F.3d at 694

(quoting eBay Inc., 547 U.S. at 391). In circumstances such as this, courts often “withhold[]

judicial interjection unless it clearly appears that the case calls for an assertion of an overriding

17 public interest in having agencies follow the regulations which control government contracting.”

M. Steinthal & Co., Inc. v. Seamans, 455 F.2d 1289, 1300 (D.C. Cir. 1970) (internal quotation

marks omitted) (discussing the government procurement process).

Here, even if Plaintiff had prevailed on the merits of its motion for summary judgment,

the Court would not have exercised its discretion to grant Plaintiff’s requests for injunctive relief.

Injunctive relief is not warranted in this case for two primary reasons. First, Plaintiff has not

established that it has been irreparably harmed. Second, Plaintiff has not adequately

demonstrated that the balance of equities and the public interest weigh in favor of injunctive

relief.

First, Plaintiff has not demonstrated that it has been irreparably harmed. In its summary

judgment briefing, Plaintiff’s arguments in support of irreparable harm are almost identical to

those arguments put forth in Plaintiff’s Application for a Temporary Restraining Order. ECF No.

2, 10-12. In the Court’s Memorandum Opinion denying Plaintiff a temporary restraining order,

the Court explained that it was “unable to ascertain the economic impact on Plaintiff’s business

in any meaningful way at all because—absent quoting the amount of revenue it could allegedly

receive based on rates set forth in NPS’s prospectus—Plaintiff has provided the Court with no

evidence on this issue.” ECF No. 10, 12. In its current briefing, this issue persists. Plaintiff has

submitted no new evidence establishing irreparable harm, and Plaintiff’s references to general

financial loss are not sufficient to establish irreparable harm. See Vencor Nursing L.P. v. Shalala,

63 F. Supp. 2d 1, 13 (D.D.C. 1999) (explaining that “monetary loss is usually accorded little or

no weight in the irreparable-harm analysis”). Plaintiff’s claim of irreparable harm is further

weakened by the fact that Plaintiff has continued to operate without the right to the transportation

18 events in question since at least 2014. The Court will not grant injunctive relief on the mere

speculation of irreparable harm.

Moreover, it is not at all obvious that granting injunctive relief would cure Plaintiff’s

alleged irreparable harm. Plaintiff offers no support for its assumption that it would receive a

contract for the unused transportation events through a public solicitation process. This is

especially true as Plaintiff was not “next in line” for any of the original contracts awarded in

2014. Jan. 4, 2018 Memorandum Opinion, ECF No. 10, 13.

In addition to its failure to establish irreparable harm, Plaintiff also fails to demonstrate

that the balance of the equities and the public interest weigh in favor of injunctive relief. Even if

Plaintiff were to have prevailed on the merits, Defendants had at least a reasonable basis in law

for restricting the reallocation of the unused transportation events to existing concessioners. See

M. Steinthal, 455 F.2d at 1301 (restricting the court’s analysis to “whether the … agency’s

decision had a reasonable basis” when an unchosen bidder for a government contract sought an

injunction). Additionally, granting Plaintiff’s request for injunctive relief could harm those

concessioners who are currently providing shuttle services under their contracts. And, if the

Court were to order NPS to award the shuttle service transportation event to Plaintiff, other

interested bidders who also submitted proposals in the original 2014 public solicitation process

would be injured due to their inability to participate. Moreover, removing the shuttle service

transportation event from the existing concessioner risks creating a disruption in services for the

public. And, Plaintiff has cited nothing which would lead the Court to find that the current

concessioner’s services are inadequate or otherwise against the public’s interest.

Based on Plaintiff’s failure to prove irreparable harm and that the balance of the equities

and the public interest weigh in favor of granting injunctive relief, the Court would not exercise

19 its discretion to grant such relief even if Plaintiff had prevailed on its motion for summary

judgment.

VII. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Summary Judgment is DENIED, and

Defendants’ Cross-Motion for Summary Judgment is GRANTED. It was permissible under the

APA for NPS to reallocate the shuttle service transportation event through contract amendment in

a closed solicitation process. Because it was permissible for NPS to limit its solicitation process

to existing concessioners, Plaintiff does not have standing to challenge the specific method by

which NPS chose between existing concessioners. As Plaintiff has not prevailed in this lawsuit, it

is not entitled to any relief, including injunctive relief. An appropriate Order accompanies this

Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge