Lewis v. Babbitt

998 F.2d 880, 1993 WL 255417
Court of Appeals for the Tenth Circuit·Decided July 12, 1993·No. No. 92-8039·Published·Cited by 24 cases

Opinion

TACHA, Circuit Judge.

Mr. Lewis appeals a district court order granting the appellees’ motion for summary judgment. Lewis was the firewood conces-sioner in Yellowstone National Park from 1976 to 1989. In 1989, the National Park Service (“NPS”) solicited proposals for the firewood concession permit for the next, four-year period. NPS received two proposals, including Lewis’s, and ultimately decided to award the permit to Firebox Inc. (“Firebox”) after concluding that Lewis made material misrepresentations regarding financing and that he failed to demonstrate the ability to finance his amended proposal. On appeal, Lewis argues that the NPS misconstrued the National Park System Concessions Policy Act, 16 U.S.C. §§ 20-20g, and that its decision not to negotiate a new permit with Lewis was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I.

On appeal, we review the grant of summary judgment de novo, using the same standards applied by the district court. Osgood v. State Farm Mut. Auto. Ins. Co., 848 F.2d 141, 143 (10th Cir.1988). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 5.6(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986).

We review agency action to determine whether it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). We review an agency’s interpretation of an ambiguous statute to determine whether it is “rational and consistent with the statute.” [882]*882Aulston v. United States, 915 F.2d 584, 589 (10th Cir.1990), cert. denied, - U.S.-, 111 S.Ct. 2011, 114 L.Ed.2d 98 (1991) (internal quotations omitted). An agency’s interpretation of its own regulations is entitled to great deference and will be rejected only if it is “unreasonable, plainly erroneous, or inconsistent with the regulation’s, plain meaning.” Bar MK Ranches v. Yuetter, 994 F.2d 735, 738 (10th Cir.1993);

Judicial review under these standards is generally based on the administrative record that was before the agency at the time of its decision, id., and reviewing courts may not rely on litigation affidavits that provide post hoc rationalizations for the agency’s action, see Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971). In order to facilitate judicial review, however, a reviewing court may obtain affidavits from the agency that provide additional explanations of the reasons for its decision. Camp v. Pitts, 411 U.S. 138, 142-43, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). We find that the district court properly relied on the agency’s affidavits by using them to explain the administrative record rather than as a substitute for it.

II.

Lewis argues that the NPS acted unreasonably by concluding that Firebox’s proposal was responsive to the Statement of Requirements (“SOR”) for the permit and by requiring Lewis, who had a right of preference to the permit, to match Firebox’s allegedly unresponsive proposal.1 We reject his argument.

The SOR for the firewood concession permit states:

To be responsive, proposals must be accompanied by a signed letter and must contain sufficient information to convince the Secretary acting through the Superintendent that the proponent meets the principal and secondary factors specified in the following paragraph. All responsive proposals will be further reviewed and evaluated to determine which is the best overall.

(emphasis added). As the emphasized language indicates, this provision does not require strict compliance with the SOR, but rather leaves the responsiveness determination to the agency’s discretion. The NPS found that, although neither Firebox’s proposal nor Lewis’s proposal complied exactly with the SOR’s requirements, they both contained sufficient information to be deemed responsive. We hold that this conclusion is not arbitrary, capricious, unlawful, or an abuse of discretion. We therefore need not decide whether a concessioner with a right of preference may be required to match an unresponsive proposal.

Lewis next argues that the NPS arbitrarily and capriciously determined that his amended proposal failed to satisfy the SOR’s financial requirements. Based on our review of evidence in the administrative record, we disagree. On December 28, 1989, the NPS notified Lewis that Firebox had submitted a better proposal because it proposed to sell firewood from vending machines twenty-four hours a day. Lewis submitted a timely amended proposal in the form of a letter in which he stated his intention to sell firewood through vending machines and to match the terms and conditions of Firebox’s proposal. The letter, however, did not indicate how Lewis intended to finance the proposal, and the NPS sought supplemental information from Lewis about his financing arrangements.

On February 20,1990, Lewis responded by letter, stating that he intended to finance his proposal with a loan from the Montana Department of Commerce and that he had already met with the loan program director and a board member who believed that the loan would be approved. He further indicated that, should the loan not be approved, he would obtain a conventional bank loan. The NPS contacted both of Lewis’s proposed lenders the next day to confirm Lewis’s representations and discovered that Lewis had not yet contacted either lender about financing his amended proposal. On March 5, 1990, Lewis mailed a letter to the NPS in which he indicated that he was also applying [883]*883to lease the vending machines in case the loans were not approved. The NPS did not receive that letter, however, until March 7, one day after it had determined that Lewis did not have the necessary financing to implement his proposal and had decided to negotiate a permit with Firebox. Under the circumstances, the NPS’s decision was not arbitrary or capricious.

Lewis further argues that the NPS acted arbitrarily by allowing Firebox, but not Lewis, to supplement its proposal with additional financial information. This argument is unavailing. The SOR states that “[t]he National Park Service may verify information and clarify points as it feels necessary.

Free access — add to your briefcase to read the full text and ask questions with AI

Lewis v. Babbitt, 998 F.2d 880, 1993 WL 255417 (10th Cir. 1993).

998 F.2d 880 (Lewis v. Babbitt) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Hays Medical Center v. Azar
956 F.3d 1247 (Tenth Circuit, 2020)
Sierra Club, Inc. v. Bostick
539 F. App'x 885 (Tenth Circuit, 2013)
Mahon v. United States
795 F. Supp. 2d 149 (D. Massachusetts, 2011)
Sierra Club v. United States Fish & Wildlife Service
189 F. Supp. 2d 684 (W.D. Michigan, 2002)
City of Albuquerque v. Browner
97 F.3d 415 (Tenth Circuit, 1996)
Fort Sumter Tours, Inc. v. Babbitt
66 F.3d 1324 (Fourth Circuit, 1995)
Iskcon Of Potomac, Inc. v. Kennedy
61 F.3d 949 (D.C. Circuit, 1995)
Seafarers Intern. Union of North America v. United States
891 F. Supp. 641 (District of Columbia, 1995)
Paul's Beauty College v. United States
885 F. Supp. 1468 (D. Kansas, 1995)
Lewis v. Babbitt
998 F.2d 880 (Tenth Circuit, 1993)