United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 6, 2001 Decided March 1, 2002
No. 01-5223
Amfac Resorts, L.L.C.,
Appellant
v.
United States Department of the Interior, et al.,
Appellees
Consolidated with
Nos. 01-5226, 01-5229, 01-5233
Appeals from the United States District Court
for the District of Columbia
(00cv02838)
(00cv02885)
(00cv02937)
(00cv03085)
---------
Kenneth S. Geller argued the cause for appellants. With
him on the briefs were David M. Gossett, Mark H. Lynch,
Robert A. Long Jr., Daniel F. Attridge, Robert R. Gasaway,
Ashley C. Parrish, Edward J. Shapiro and Eric J. Wycoff.
Marina Utgoff Braswell, Assistant U.S. Attorney, argued
the cause for appellees. With her on the brief were Roscoe
C. Howard Jr., U.S. Attorney, R. Craig Lawrence, Assistant
U.S. Attorney, and Michael A. Carvin.
Before: Randolph and Garland, Circuit Judges, and
Williams, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: These are four consolidated
cases on appeal from the judgment of the district court
sustaining regulations of the National Park Service governing
concession contracts in the National Park System. Many of
the issues are tied to the history of the National Park System
and the functions concessioners perform in the operation of
the parks.
The history begins with the discovery of "Old Faithful" and
the other natural wonders of what is now Yellowstone Nation-
al Park. In 1872, Congress withdrew the land at the headwa-
ters of the Yellowstone River from "settlement, occupancy, or
sale," thus creating the first national park in the United
States. Act of Mar. 1, 1872, ch. 24, § 1, 17 Stat. 32. See also
Aubrey L. Haines, Yellowstone National Park: Its Explora-
tion and Establishment (1974). Not everyone had been
enthusiastic about the plan to create Yellowstone National
Park. A local newspaper editorial worried that "the effect of
this measure will be to keep the country a wilderness, and
shut out, for many years, the travel that would seek that
curious region if good roads were opened through it and
hotels built therein." Haines, supra, at 127 (quoting the
Helena Daily Herald of Mar. 1, 1872). In the final legisla-
tion, Congress responded by authorizing the Secretary of the
Interior to lease portions of the park for "the erection of
buildings for the accommodation of visitors." 17 Stat. 33.
As the United States withdrew more areas from the public
domain, it continued to favor the interests of park visitors.
In creating the National Park Service in 1916, Congress
authorized the Interior Secretary to "grant privileges, leases,
and permits for the use of land for the accommodation of
visitors" to each of the "various parks, monuments, or other
reservations" under the Secretary's authority. An Act to
Establish a National Park Service, ch. 408, 39 Stat. 595
(1916). In the view of the first director of the Park Service,
Stephen Mather: "Scenery is a hollow enjoyment to a tourist
who sets out in the morning after an indigestible breakfast
and a fitful sleep in an impossible bed." Dennis J. Herman,
Loving Them to Death: Legal Controls on the Type and
Scale of Development in the National Parks, 11 Stan. Envtl.
L.J. 3, 3 (1992).
During its first thirty years, the Park Service followed
internal regulations and policies governing concessioners and
their obligations to park visitors and to the national park
lands. The government also offered financial inducements to
private contractors to convince them to provide and operate
facilities in what were often remote locations. See Park
Concession Policy: Hearings Before the Subcomm. on Na-
tional Parks of the House Comm. on Interior and Insular
Affairs, 88th Cong. 5-8 (1964) [hereinafter Park Concession
Policy Hearings] (letter from John A. Carver, Jr., Assistant
Secretary of the Interior).
For our purposes the most significant of these incentives
was a preferential right of renewal, which "contemplated that
every existing contract covering public operations [in the
national parks] will be renewed at the expiration thereof,
provided, of course, that full and satisfactory service to the
public had been given thereunder." Memorandum for the
Acting Under Secretary, U.S. Department of the Interior
(Aug. 10, 1940). When the Interior Department sought to
change its policies and withdraw some of these financial
incentives in the late 1940s, the concessioners and some in
Congress balked. See H.R. Res. 66, 81st Cong. (1950), passed
by the Comm. on Public Lands and included in H.R. Rep. No.
81-3133, at 5-6 (1950). In response, the Secretary announced
new guidelines for concession contracts and preserved many
of the existing financial incentives for concessioners, including
the preferential right of renewal. Id. at 4-5. The House
Committee on Public Lands passed a resolution endorsing
these new guidelines, although the resolution of course had no
legal effect. INS v. Chadha, 462 U.S. 919 (1983).
By the 1960s, other House committees started expressing
doubt about the soundness of the Interior Department's
contracting policies, particularly the financial incentives it was
giving concessioners. See House Comm. on Government Oper-
ations, Survey of Selected Activities, H.R. Rep. No. 88-306,
pt. 3, at 4-12 (1963) ("The committee's inquiry disclosed
considerable weakness in the National Park Service's opera-
tions in several matters involving concessioners in the nation-
al parks."). When Congress considered the 1964 appropria-
tions bill for the Department of the Interior, the House
Committee on Appropriations recommended that "competitive
bidding should be required for concession contracts, in lieu of
the current practice of granting preferential opportunities to
existing concessioners to negotiate new contracts." Depart-
ment of the Interior and Related Agencies Appropriation
Bill, H.R. Rep. No. 88-177, at 10 (1963).
Concerned that "certain other committees that do not have
jurisdiction" had "attempted to get into the problem of con-
cessions," the House Committee on Interior and Insular
Affairs produced a bill to "put into statutory form" the
longstanding concessions policies of the Park Service, includ-
ing the preferential right of renewal. H.R. Rep. No. 89-591,
at 1 (1965); Park Concession Policy Hearings at 19. In
1965, these concession policies were enacted into law. See
111 Cong. Rec. 23,632-48 (1965). Part of the legislation
provided that the "Secretary [of the Interior] shall ... giv[e]
preference in the renewal of contracts or permits and in the
negotiation of new contracts or permits to the concessioners
who have performed their obligations ... to the satisfaction
of the Secretary." National Park Service Concessions Policy
Act, Pub. L. No. 89-249, § 5, 79 Stat. 969, 970 (1965),
repealed by National Parks Omnibus Management Act of
1998, Pub. L. No. 105-391, § 415(a), 112 Stat. 3497, 3515.
The preference gave "incumbent concessioners, upon renewal,
the right to meet any better offer received" by the Park
Service. U.S. Dep't of the Interior, Report of the Task
Force on National Park Service Concessions 10 (1990).
The 1965 Act governed all concession contracts entered into
by the Park Service. Concessioners paid the government a
franchise fee, typically less than five percent of gross reve-
nues, for the privilege of operating on federal land. If they
used government-owned facilities they paid an additional fee.
In 1998, after several aborted attempts, Congress repealed
the preferential right of renewal and enacted other rules
governing concession contracts. National Parks Omnibus
Management Act of 1998, 16 U.S.C. ss 5951-5966.
Plaintiffs are three companies who have current conces-
sions contracts with the Park Service and an association of
concessioners. They brought four separate actions challeng-
ing the Park Service regulations, issued in 2000, to implement
the 1998 Act. 65 Fed. Reg. 20,630 (Apr. 17, 2000) (to be
codified at 36 C.F.R. pt. 51). The district court consolidated
the four lawsuits, and granted summary judgment to the
government on all of the claims save one (which has not been
appealed to this court). Amfac Resorts v. United States
Dep't of the Interior, 142 F. Supp. 2d 54 (2001).
I.
The first issue centers on the 1998 Act's repeal of the
statutory preferential right of renewal in § 5 of the 1965 Act.
The 1998 Act provided that, except for small contracts and
outfitter and guide services, "the Secretary shall not grant a
concessioner a preferential right to renew a concessions con-
tract." 16 U.S.C. § 5952(7). A savings clause in the 1998
Act, § 415(a), states: "repeal of [the 1965 Act] shall not affect
the validity of any concessions contract or permit entered into
under such Act, but the provisions of this title shall apply to
any such contract or permit except to the extent such provi-
sions are inconsistent with the terms and conditions of any
such contract or permit." Pub. L. No. 105-391, § 415(a), 112
Stat. 3497, 3515 (1998).
The Park Service interpreted the repealing and the savings
clauses in the following narrative regulation:
§ 51.102 What is the effect of the 1998 Act's repeal
of the 1965 Act's preference in renewal?
(a) Section 5 of the 1965 Act required the Secretary to
give existing satisfactory concessioners a preference in
the renewal (termed a "renewal preference" in the rest of
this section) of its concession contract or permit. Section
415 of the 1998 Act repealed this statutory renewal
preference as of November 13, 1998. It is the final
decision of the Director, subject to the right of appeal set
forth in paragraph (b) of this section, that holders of 1965
Act concession contracts are not entitled to be given a
renewal preference with respect to such contracts (al-
though they may otherwise qualify for a right of prefer-
ence regarding such contracts under Sections 403(7) and
(8) of the 1998 Act as implemented in this part). Howev-
er, if a concessioner holds an existing 1965 Act conces-
sion contract and the contract makes express reference
to a renewal preference, the concessioner may appeal to
the Director for recognition of a renewal preference.
(b) Such appeal must be in writing and be received by
the Director no later than thirty days after the issuance
of a prospectus for a concession contract under this part
for which the concessioner asserts a renewal preference.
The Director must make a decision on the appeal prior to
the proposal submission date specified in the prospectus.
Where applicable, the Director will give notice of this
appeal to all potential offerors that requested a prospec-
tus. The Director may delegate consideration of such
appeals only to a Deputy or Associate Director. The
deciding official must prepare a written decision on the
appeal, taking into account the content of the appeal and
other available information.
(c) If the appeal results in a determination by the Di-
rector that the 1965 Act concession contract in question
makes express reference to a renewal preference under
section 5 of the 1965 Act, the 1998 Act's repeal of section
5 of the 1965 Act was inconsistent with the terms and
conditions of the concession contract, and that the holder
of the concession contract in these circumstances is enti-
tled to a renewal preference by operation of law, the
Director will permit the concessioner to exercise a re-
newal preference for the contract subject to and in
accordance with the otherwise applicable right of prefer-
ence terms and conditions of this part, including, without
limitation, the requirement for submission of a respon-
sive proposal pursuant to the terms of an applicable
prospectus. The Director, similarly, will permit any
holder of a 1965 Act concession contract that a court of
competent jurisdiction determines in a final order is
entitled to a renewal preference, for any reason, to
exercise a right of preference in accordance with the
otherwise applicable requirements of this part, including,
without limitation, the requirement for submission of a
responsive proposal pursuant to the terms of an applica-
ble prospectus.
36 C.F.R. § 51.102 (2001).
The Park Service thus will not recognize a preferential
right of renewal for concessioners whose pre-1998 contracts
are expiring, unless the contract expressly so provides. See
65 Fed. Reg. at 20,631-33. In the language of the savings
clause of § 415(a), without such contractual "terms and condi-
tions" it would not be "inconsistent"--as the Park Service
sees it--to refuse to allow a preferential right of renewal.
A typical concession contract runs for 15 or 20 years.
Report of the Task Force on National Park Service Conces-
sions, supra, at 5. One of the plaintiffs, Amfac Resorts,
L.L.C., had a 30-year contract for the Grand Canyon. A
right of renewal for pre-1998 contracts is therefore a matter
of great interest to those holding these contracts. The
concessioners say that the renewal provision of the 1965 Act
represented an "entrenched policy"; that the policy was
incorporated by law as an unwritten term in every concession
contract signed between 1965 and 1998; and that the Park
Service regulation violates § 415 of the 1998 Act (the savings
clause) because it allows a preferential right of renewal only if
contracts before the 1998 Act expressly so state.
A.
The concessioners' argument in favor of an "implied" right
of renewal initially rests on the "Christian doctrine," named
after G.L. Christian & Assocs., 312 F.2d 418, 424 (Ct. Cl.
1963). As they explain it, the doctrine requires "that long-
standing and deeply-ingrained agency policies, such as the
[Park Service's] entrenched policy of granting concessioners
renewal rights in exchange for concessioner investments,
form a mandatory part of all government contracts." Brief
for Appellants at 21.
The Federal Circuit has, on occasion, concluded that cer-
tain statutory or regulatory provisions may become part of a
government contract even though the contract does not con-
tain language to that effect. See S.J. Amoroso Constr. Co. v.
United States, 12 F.3d 1072, 1075 (Fed. Cir. 1993); General
Engineering & Machine Works v. O'Keefe, 991 F.2d 775, 779
(Fed. Cir. 1993).
Our court has never adopted the Federal Circuit's Chris-
tian doctrine. Even if we did so, it would boot the conces-
sioners nothing. In describing the doctrine, they have omit-
ted a crucial element. The Federal Circuit does not hold that
significant or important federal policies "form part of govern-
ment contracts even where absent from those contracts'
explicit text." Brief for Appellants at 22. If that were the
law, Congressional power to make adjustments in legislation
would be greatly constricted. Statutory provisions would live
on as part of long-term contracts well after their repeal or
modification. This is why, as the Supreme Court put it in
Dodge v. Board of Education, 302 U.S. 74, 79 (1937), there is
a "presumption" that "a law is not intended to create private
contractual or vested rights but merely declares a policy to be
pursued until the legislature shall ordain otherwise." To this
the Court added in Nat'l R.R. Passenger Corp. v. Atchison,
Topeka & Santa Fe Ry., 470 U.S. 451, 465-66 (1985) [herein-
after Atchison]: "Policies, unlike contracts, are inherently
subject to revision and repeal, and to construe laws as
contracts when the obligation is not clearly and unequivocally
expressed would be to limit drastically the essential powers of
a legislative body." It is true, as the concessioners point out,
that the holding of Atchison was that a statute did not itself
create a contract. Reply Brief for Appellants at 12. But it is
not true that the case is therefore "irrelevant." Id. The
Court's reasoning applies equally to claims, such as the
concessioners', that a statute (here the 1965 Act) created a
contractual obligation in all contracts executed before its
repeal. See General Motors Corp. v. Romein, 503 U.S. 181,
190 (1992).
One element of the Christian doctrine, the element missing
from the concessioners' statement of the law, saves it from
contradicting this line of Supreme Court authority. Accord-
ing to the Federal Circuit, it is not enough that the legislative
or regulatory provision is important or significant (assuming
one could make such rankings). To constitute a contractual
obligation even though not written in the contract, the provi-
sion must be a mandatory contract clause, a clause the
legislation--or as in Christian, 312 F.2d at 424, the regula-
tion--requires to be included in contracts. Thus, "a mandato-
ry contract clause that expresses a significant or deeply
ingrained strand of public procurement policy is considered to
be included in a contract by operation of law." S.J. Amoroso
Constr. Co. v. United States, 12 F.3d at 1075. And the
Christian doctrine "applies to mandatory contract clauses
which express a significant or deeply ingrained strand of
public procurement policy." General Engineering & Ma-
chine Works v. O'Keefe, 991 F.2d at 779.
The renewal provision contained in § 5 of the 1965 Act was
by no stretch a mandatory contract term. The Secretary's
contracting authority was derived from a different part of the
1965 Act--s 3, which authorized the Secretary to "include in
contracts" such "terms and conditions as, in his judgment, are
required to assure the concessioner of adequate protection
against loss of investment ... resulting from discretionary
acts, policies, or decisions of the Secretary occurring after the
contract has become effective...." § 3, 79 Stat. 969. Sec-
tion 5 of the 1965 Act was of another sort. It stated that the
Secretary "shall ... giv[e] preference in the renewal of
contracts or permits...." § 5, 79 Stat. 970. Rather than
leaving the matter to individual negotiations, § 5 required the
Secretary to grant a right of renewal to all concessioners,
regardless of the terms of their individual concession con-
tracts. The provision thus constituted "legislation which
merely declares a state policy, and directs a subordinate body
to carry it into effect." Dodge v. Bd. of Educ., 302 U.S. at 78.
We agree with the district court that if § 5 meant that the
Secretary had to insert a preferential right of renewal clause
in all concession contracts, one would have expected a di-
rection, or at least an authorization, to this effect. 142 F.
Supp. 2d at 72. There is none.
It is possible that some parties nevertheless insisted on
having a right of renewal written into their contracts and that
the Secretary yielded. Possible, but not likely. The conces-
sioners have identified no such contract and the Park Service
is aware of none. 65 Fed. Reg. at 20,664. The Service's
standard-form concession contract, in effect from 1965 to
1998, contained no right-of-renewal clause. See 65 Fed. Reg.
at 20,632. The regulation under the 1998 Act nevertheless
allows for the possibility and, in compliance with the saving
clause, states that if a concession contract contains an express
right of renewal the Secretary will honor it. 36 C.F.R.
s 51.102(c) (2000).
B.
Apart from the Christian doctrine, each of the concession-
ers maintains that the Park Service's regulation is "facially
invalid because [it denies] altogether the possibility of implied
contractual rights in individual cases" and prevents "any
concessioner in a future proceeding from offering specific
evidence of a bargained-for and mutually-agreed upon con-
tractual renewal right. If even one concessioner has such
evidence, the regulations denying those rights across-the-
board are unlawful." Brief for Appellants at 26, 27. In other
words, although the regulation is valid as applied to dozens of
concession contracts, it is invalid because of the possibility
that one concessioner might have an implied--that is, an
unwritten--preferential right of renewal. The argument,
aimed at the validity of the regulation on its face, does not
accurately state the law.
In United States v. Salerno, 481 U.S. 739, 745 (1987), the
Supreme Court stated:
A facial challenge to a legislative Act is, of course, the
most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances
exists under which the Act would be valid. The fact that
the [statute] might operate unconstitutionally under
some conceivable set of circumstances is insufficient to
render it wholly invalid, since we have not recognized an
"overbreadth" doctrine outside the limited context of the
First Amendment.
Justice Stevens believes that only the second sentence of the
Salerno excerpt states the governing principle for facial
challenges. He and Justice Scalia have debated whether the
first sentence from Salerno--what has become known as the
"no-set-of-circumstances" test--is instead controlling. See
City of Chicago v. Morales, 527 U.S. 41, 55 (1999) (plurality
opinion by Stevens, J., joined by Justices Souter and Gins-
burg); id. at 74-83 (Scalia, J., dissenting). See also
Anderson v. Edwards, 514 U.S. 143, 155 n.6 (1995); Santa Fe
Indep. Sch. Dist. v. Doe, 530 U.S. 290, 318 (2000) (Rehnquist,
C.J., joined by Justices Scalia and Thomas, dissenting). For
our part, we have invoked Salerno's no-set-of-circumstances
test to reject facial constitutional challenges. See, e.g., James
Madison Ltd., by Hecht v. Ludwig, 82 F.3d 1085, 1101 (D.C.
Cir. 1996); Chemical Waste Mgmt., Inc. v. EPA, 56 F.3d
1434, 1437 (D.C. Cir. 1995); Steffan v. Perry, 41 F.3d 677, 693
(D.C. Cir. 1994) (en banc).
The facial attack on § 51.102 is not, of course, on the basis
that the regulation is unconstitutional. The claim is that
s 51.102 conflicts with § 415 of the 1998 Act. In National
Mining Ass'n v. Army Corps of Engineers, 145 F.3d 1399,
1407 (D.C. Cir. 1998), we declined to adopt the Salerno test in
a comparable case, stating that the "Supreme Court has
never adopted a 'no set of circumstances' test to assess the
validity of a regulation challenged as facially incompatible
with governing statutory law."
Our examination of Supreme Court precedent in National
Mining apparently overlooked Reno v. Flores, 507 U.S. 292
(1993). There a class of alien juveniles, arrested on suspicion
of being deportable and then detained pending deportation
hearings, claimed that a regulation preventing their release
except to close relatives violated the Due Process Clause and
conflicted with the underlying statute. The Court, speaking
through Justice Scalia, described the case as involving only a
facial challenge to the regulation and then held as follows:
"To prevail in such a facial challenge, respondents 'must
establish that no set of circumstances exists under which the
[regulation] would be valid.' United States v. Salerno, 481
U.S. 739, 745 (1987). That is true as to both the constitution-
al challenges, see Schall v. Martin, 467 U.S. 253, 268, n. 18
(1984), and the statutory challenge, see [INS v. National
Center for Immigrants' Rights, 502 U.S. 183, 188 (1991)
[hereinafter NCIR]]." 507 U.S. at 301. See Public Lands
Council v. Babbitt, 167 F.3d 1287, 1301 (10th Cir. 1999)
(applying the Reno v. Flores formulation to a statutory
challenge to a regulation). Cf. Pharmaceutical Research &
Mfrs. v. Concannon, 249 F.3d 66, 77 (1st Cir. 2001) (applying
Salerno in a preemption case). See also Marc E. Isserles,
Overcoming Overbreadth: Facial Challenges and the Valid
Rule Requirement, 48 Am. U. L. Rev. 359, 405 (1998).
When an intervening Supreme Court decision alters the
law of the circuit, a panel of our court must follow the Court's
decision in all later cases. See, e.g., McKesson Corp. v.
Islamic Republic of Iran, 52 F.3d 346, 350 (D.C. Cir. 1995);
National Treasury Employees Union v. FLRA, 30 F.3d 1510,
1516 (D.C. Cir. 1994). But here the Supreme Court decision
was not intervening; it was rendered before National Min-
ing. Whether despite Reno v. Flores, National Mining
therefore must stand as circuit law unless and until the full
court overrules it is a question unnecessary for us to answer.
See LaShawn A. v. Barry, 78 F.3d 1389, 1395 (D.C. Cir. 1996)
(en banc). National Mining dealt only with the no-set-of-
circumstances formulation of Salerno. It did not mention
NCIR, the opinion cited in Reno v. Flores for the proposition
that Salerno applied to statutory challenges. Justice Ste-
vens, writing for the Court in NCIR, held: "That the regula-
tion may be invalid as applied in some cases, however, does
not mean that the regulation is facially invalid because it is
without statutory authority." 502 U.S. at 188. NCIR, with-
out citing Salerno, echoed in a non-constitutional setting the
sentence in Salerno following the no-set-of-circumstances
test--"The fact that the [statute] might operate unconstitu-
tionally under some conceivable set of circumstances is insuf-
ficient to render it wholly invalid," 481 U.S. at 745. See
Janklow v. Planned Parenthood, 517 U.S. 1174 (1996) (memo-
randum of Stevens, J., on denial of certiorari).
Either formulation--the no-set-of-circumstances test
adopted from Salerno in Reno v. Flores, or the less strict
NCIR standard--may pose potential problems for judicial
review of agency regulations, especially in this circuit. Lack-
ing a rulemaking record containing evidence relating to the
rule's application to a particular entity, petitioners ordinarily
mount only facial attacks, often on the ground that the
agency's product conflicts with the statute. In such cases,
the consequence of upholding the regulation because it is not
invalid in all its applications (Reno v. Flores), or because it is
invalid in only some of its applications (NCIR), may be that
petitioners would have to make their challenge in another
circuit and in another setting, in defense of an enforcement
action for instance. Some of the statutes governing jurisdic-
tion prescribe a specific time period for judicial review of
regulations, restrict venue to our circuit, and may prohibit
review outside the time period, except in limited circum-
stances. See, e.g., Clean Air Act, 42 U.S.C. § 7607(b); Com-
prehensive Environmental Response, Compensation, and Lia-
bility Act of 1980 (CERCLA), 42 U.S.C. § 9613(a); Adamo
Wrecking Co. v. United States, 434 U.S. 275 (1978); United
States v. Ethyl Corp., 761 F.2d 1153 (5th Cir. 1985); Frede-
rick Davis, Judicial Review of Rulemaking: New Patterns
and New Problems, 1981 Duke L.J. 279, 285-90. Although
one court has held that the Clean Air Act, 42 U.S.C.
s 7607(b), deprived it of jurisdiction to review EPA regula-
tions when they are applied, see Potomac Elec. Power Co. v.
EPA, 650 F.2d 509, 513 (4th Cir. 1981), we have ruled that
preclusion must be explicit for review to be barred in an
enforcement action, see Indep. Cmty. Bankers of Am. v. Bd.
of Governors of Fed. Reserve Sys., 195 F.3d 28, 34 (D.C. Cir.
1999), and that even express preclusion may not operate when
the issue would have been unripe during the period of statu-
tory review. See Clean Air Implementation Project v. EPA,
150 F.3d 1200, 1204 (D.C. Cir. 1998). Perhaps the congres-
sional intent reflected in judicial review provisions such as
s 7607(b) of the Clean Air Act may also demand adjustments
in the Reno v. Flores or NCIR test for reviewing facial
attacks on regulations, assuming the tests are not constitu-
tionally compelled. See City of Chicago v. Morales, 527 U.S.
at 77 (Scalia, J., dissenting).
Whatever the outcome in such cases, the situation here is
not comparable. Our circuit does not have exclusive jurisdic-
tion over Park Service regulations, and judicial review is not
confined to a particular time period. Nothing would preclude
a concessioner from bringing an action for a declaratory
judgment that the regulation, as applied to the concessioner,
deprives it of a contractual right in violation of the savings
clause. In fact, one of the consolidated actions in the district
court was such a suit. Amfac's complaint alleged that its
1969 contract for the Grand Canyon was about to expire, that
the contract contained an implied preferential right of renew-
al arising "from the circumstances of the formation of the
1969 contract," that the Park Service's regulation denied the
existence of such an implied term, and that the regulation as
applied to Amfac therefore violated § 415 of the 1998 Act.
Although § 51.102 may be valid on its face, this would not
necessarily doom Amfac's as-applied challenge.
With this in mind, we return to the concessioners' assertion
that if "even one concessioner has [evidence showing an
implied right of renewal], the regulations denying those rights
across-the-board are unlawful." Brief for Appellants at 27.
We do not need to choose between Reno v. Flores or NCIR to
dispose of that contention. Not even First Amendment over-
breadth analysis--which embodies a far more difficult stan-
dard for laws to satisfy than the one the Court formulated in
Salerno--would render a law facially invalid because of the
prospect of a single invalid application. An overbreadth
attack will succeed only if the legislation is substantially
overbroad--that is, only if the law "reaches a substantial
number of impermissible applications." New York v. Ferber,
458 U.S. 747, 771 (1982). That there might be one invalid
application is therefore far from enough to make the regula-
tion unlawful under any of the standards we have mentioned.
Perhaps recognizing as much, the concessioners assert that
"some contracts might as a factual matter include the [renew-
al] right as a bargained-for term," a "possibility" (despite
obstacles posed by the parol evidence rule and perhaps
statutes of fraud) they think is enough to render the regula-
tion unlawful. Brief for Appellants at 29. But far more is
demanded before a regulation may be declared facially inval-
id. Under Reno v. Flores, § 51.102 must of course be
sustained on its face because there are circumstances in
which applying the regulation would not be inconsistent with
s 415 of the 1998 Act. The regulation's requirement of an
express contract term, for instance, properly eliminates
claims of an implied renewal right based on the Christian
doctrine alone. Even under the more relaxed standard of
NCIR, it is not enough that "some contracts might as a
factual matter" contain an implied renewal right. To repeat,
that "the regulation may be invalid as applied in some cases,
however, does not mean that the regulation is facially invalid
because it is without statutory authority." NCIR, 502 U.S. at
188. We therefore reject the concessioners' facial attack on
s 51.102.
In reaching this result we have followed a course different
than that of the district court. We should explain why. The
district court thought the "lawfulness of the defendants'
regulations turns on whether the plaintiffs each have a con-
tractual right to preference renewal." 142 F. Supp. 2d at 71.
With this we agree. We also agree--as our discussion of the
Christian doctrine indicates--with the district court's conclu-
sion that the 1965 Act did not itself confer a contractual
renewal right on the concessioners. Id. at 72. As to the
concessioners' allegations that they had an implied-in-fact
contract embodying their right of renewal, the court rejected
these claims on the basis that "the administrative record
provides no indication that the parties had the mutual under-
standing that the contract contained the renewal terms." Id.
at 73. (The court must have had in mind all existing conces-
sion contracts, not just one.) The court added that the
administrative record "is wholly devoid of information sug-
gesting that the [Park Service] intended the renewal term to
be part of the contract." Id. But that is entirely under-
standable in light of the fact that the Park Service's proposed
rule dealing with rights of renewal did not contain the restric-
tion requiring the renewal right to be spelled out as an
express term. See Concessions Contracts, 64 Fed. Reg.
35,516, at 35,535 (proposed June 30, 1999). The concessioners
thus had no reason to submit evidence of implied renewal
rights in each of their contracts, assuming this sort of evi-
dence would have been allowed in the rulemaking proceeding
or could have been mustered. Moreover, the Park Service
never indicated that its final regulation rested on the district
court's rationale. See SEC v. Chenery, 332 U.S. 194, 196
(1947). After denying that the right could be inferred from
the 1965 Act, the Park Service explained that an implied
renewal right "is inconsistent with the express terms of
almost all current NPS concession contracts," 65 Fed. Reg. at
20,633. Most contracts, according to the Park Service, con-
tained a provision along these lines:
This Contract [or permit] and the administration of it by
the Secretary shall be subject to the laws of Congress
governing the Area and rules, regulations and policies
whether now in force or hereafter enacted or promulgat-
ed.
Id. But that begs the question the concessioners posed here
(and in the rulemaking, see Comments of the National Park
Hospitality Ass'n at 23 (Oct. 14, 1999)). The savings clause of
the 1998 Act is one of the "laws of Congress" to which this
contractual provision refers. If a concessioner has an implied
right of renewal in a pre-1998 contract, the savings clause
preserves it. The Park Service does not deny the possibility
of an implied contractual provision--that is, an unwritten
one--in government contracts. See Willard L. Boyd, III &
Robert K. Huffman, The Treatment of Implied-in-Law and
Implied-in-Fact Contracts and Promissory Estoppel in the
United States Claims Court, 40 Cath. U. L. Rev. 605 (1991);
Michael C. Walch, Note, Dealing with a Not-so-Benevolent
Uncle: Implied Contracts with Federal Government Agen-
cies, 37 Stan. L. Rev. 1367 (1985). The district court, quoting
Hercules, Inc. v. United States, 516 U.S. 417, 424 (1996),
summarized the law on the subject: an implied-in-fact con-
tract requires a meeting of the minds, which may be inferred
from the "conduct of the parties showing, in light of the
surrounding circumstances, their tacit understanding." The
concessioners alleged that there have been such meetings of
the mind, at least in some instances. Nonetheless, we agree
with the district court that the regulation is facially valid. As
we explained earlier, the possibility that one or some conces-
sioners had an implied-in-fact renewal right is not a sufficient
basis for holding § 51.102 of the regulations invalid on its
face.
This still leaves the allegations in Amfac's complaint that
s 51.102 was inconsistent with the savings clause of the 1998
Act as applied to Amfac's concession contract for the Grand
Canyon. Complaint of Amfac Resorts at p p 21, 41. Amfac
entered into that contract in 1969. The contract expired on
December 31, 2001, after the district court's judgment. Am-
fac turned out to be the only offeror and so the government
argues that its as-applied challenge to the right-of-renewal
regulation is moot: "Amfac can have no 'preference' for [the
Park Service] to consider when there are no other offerors."
Brief for Appellees at 33. Even if Amfac eventually won the
Grand Canyon contract, a subject about which we are not
informed, we do not believe its as-applied challenge would
necessarily be moot. Amfac argues that because § 51.102
threw its alleged implied renewal right in doubt, it "was
forced to bid more generously for the Grand Canyon contract
than it otherwise would have." Reply Brief for Appellants at
16. If this assertion can be proven, see Lujan v. Defenders of
Wildlife, 504 U.S. 555 (1992), then Amfac continues to suffer
an injury and the case is not moot. See Scheduled Airlines
Traffic Offices v. Dep't of Def., 87 F.3d 1356, 1358 (D.C. Cir.
1996).
Amfac can succeed in its claim that the regulation is invalid
as-applied to its 1969 Grand Canyon contract only if it can
prove the essential predicate--that the regulation, in contra-
diction to the savings clause of the 1998 Act, deprived it of a
contractual right. Amfac therefore should be allowed to
adduce proof of its alleged implied right of renewal and
should be permitted reasonable discovery to this end. The
district court refused to allow any discovery on the ground
that judicial review of the regulation must be confined to the
administrative record, except in limited circumstances not
presented here. 143 F. Supp. 2d at 10-13. See Am. Bankers
Ass'n v. Nat'l Credit Union Admin., 271 F.3d 262, 266-67
(D.C. Cir. 2001); Esch v. Yeutter, 876 F.2d 976, 991-92 (D.C.
Cir. 1989). We said in American Bankers, with respect to a
claim that a regulation conflicted with a statute, that the
court did not even need the administrative record to deter-
mine the validity of the regulation. 271 F.3d at 266-67. But
we were speaking there of a facial attack on the regulation.
We agree with the district court's denial of discovery to that
extent. Amfac's as-applied claim is another matter. Its
evidence of an implied renewal right would not be presented
to show what the Park Service did or did not consider in
promulgating § 51.102 of the regulations. It would be pre-
sented instead to show that the regulation would deprive it of
a contractual right in contravention of the savings clause in
the 1998 Act. In this respect, the evidence Amfac proposes
to adduce is akin to proof of its injury. Those challenging
agency action must establish that they have standing and to
do this, they must prove that the action causes injury to
them. Lujan, 504 U.S. at 560-61. They are not confined to
the administrative record. Far from it. Beyond the pleading
stage, they must support their claim of injury with evidence.
Id. So here. In mounting an as-applied challenge to a
regulation, whether in defense of an enforcement action or as
here in an action for a declaratory judgment, the party
making the challenge may--indeed, in most instances must--
present evidence outside the administrative record to show
why its particular circumstances render the regulation unlaw-
ful.
We therefore reverse the district court's grant of summary
judgment on Amfac's as-applied challenge to the prospectus
for concessions at the Grand Canyon National Park. In
doing so, we recognize that one of the claims of another
plaintiff, Hamilton Stores, Inc., might be construed as an as-
applied challenge similar to that of Amfac. Complaint of
Hamilton Stores, Inc. at p 21. But the concessioners' brief
presents no argument to this effect; in fact, neither the
concessioners' brief nor their reply brief even mentions this
portion of the Hamilton Stores complaint. We thus view the
claim, which the district court rejected, as having been waived
on appeal. See, e.g., Doe v. Dist. of Columbia, 93 F.3d 861, 875
n.14 (D.C. Cir. 1996) (per curiam).
II.
A.
The 1998 Act, as did the 1965 Act, recognized that the
United States owns all capital improvements constructed on
federal land within the National Park System. 16 U.S.C.
s 5954(d). Nonetheless, the 1998 Act gave concessioners a
"leasehold surrender interest" in any "capital improvement"
the concessioner "constructs" "pursuant to a concession con-
tract." 16 U.S.C. § 5954(a). The Act defines "capital im-
provement" as "a structure, fixture, or nonremovable equip-
ment provided by a concessioner pursuant to the terms of a
concession contract." 16 U.S.C. § 5954(e). When the conces-
sion contract expires or is terminated, the incumbent is
entitled to receive from its successor (or the government) the
value of this interest. 16 U.S.C. § 5954(c). The amount of
each concessioner's "leasehold surrender interest"--or, as the
parties call it, LSI--is "equal to the initial value (construction
cost of the capital improvement), increased (or decreased)" by
a percentage measured by the Consumer Price Index, less
depreciation. 16 U.S.C. § 5954(a)(3). If the expiring conces-
sion contract is renewed, the concessioner's LSI carries over.
16 U.S.C. § 5954(b).
The plaintiff-concessioners are unhappy with the Park Ser-
vice's regulations implementing these and other LSI provi-
sions of the 1998 Act. They say that " 'capital improvement'
is a well-recognized technical accounting term that all compa-
nies, as a matter of financial reporting, tax accounting, and
sound business practice use to distinguish upgrades to facili-
ties from ordinary 'repair and maintenance' costs." Brief for
Appellants at 41. For support they cite an affidavit from an
accountant submitted by Amfac in the district court. But the
district court refused to consider, in this facial challenge,
affidavits not submitted as part of the administrative record,
142 F. Supp. 2d at 73, and so shall we. Concessioners have
not attempted to show why affidavits outside the agency
record should be considered. See Steven Stark & Sarah
Wald, Setting No Records: The Failed Attempt to Limit the
Record in Review of Administrative Action, 36 Admin. L.
Rev. 333, 341-54 (1984). Still, we may acknowledge the
standard accounting definition of capital expenditure--an ex-
penditure that extends the useful life of the asset or increases
the asset's value, and is not repair and maintenance. Wheth-
er an expenditure fits within the first category and thus must
be depreciated or amortized, or the other category and thus
must be expensed, often calls for difficult, fact-intensive judg-
ments. See Glenn A. Welsch & Charles T. Zlatkovich,
Intermediate Accounting 443-46 (8th ed. 1989); Gary L.
Schugart, et al., Survey of Accounting 197-212 (6th ed. 1988);
Glenn A. Welsch & Daniel G. Short, Fundamentals of
Financial Accounting 448-49 (5th ed. 1987). As to tax
accounting, which the concessioners invoke without any cita-
tion to the law, we think this is entirely beside the point. The
tax code states that no deduction shall be allowed for "[a]ny
amount paid out for new buildings or for permanent improve-
ments or betterments made to increase the value of any
property or estate." 26 U.S.C. § 263. In practice, there is a
decided tilt to capitalizing many items because deductions
are, as the Supreme Court put it in INDOPCO, Inc. v.
Commissioner, 503 U.S. 79, 84 (1992), "strictly construed."
That rule of interpretation, of course, has no bearing on
whether a particular expenditure by a concessioner should be
treated as an addition to its LSI. Besides, we do not
understand what the concessioners see as the problem here.
The regulation of the Park Service repeats, word for word,
the statute's definition of "capital improvement." Compare
16 U.S.C. § 5954(e) with 36 C.F.R. § 51.51. To the extent
the concessioners are claiming that it was incumbent upon the
Park Service to add a gloss to the statutory definition, a gloss
drawn from accounting standards, they are mistaken, as the
district court held. See 142 F. Supp. 2d at 83. While
agencies may have leeway in interpreting the statutes they
administer, there is no rule of law compelling them to embell-
ish what Congress has enacted.
The concessioners also complain about § 51.67 of the regu-
lations, 36 C.F.R. § 51.67, and the "Repair and Maintenance
Reserve" in the Park Service's "Standard Concession Con-
tract," 65 Fed. Reg. at 26,069. Section 51.67 provides that
concessioners do not earn LSI "for repair and maintenance of
real property improvements unless a repair and maintenance
project is a major rehabilitation." "Major rehabilitation" is
defined in 36 C.F.R. § 51.51 as a pre-approved "comprehen-
sive rehabilitation" project the "construction cost of which
exceeds fifty percent of the pre-rehabilitation value of the
structure." (The phrase "repair and maintenance" is not
defined, in the regulations or in the 1998 Act.) The Standard
Concession Contract requires concessioners to establish a
reserve fund for repairs and maintenance projects, which
"may include repair or replacement of foundations, building
frames, window frames, sheathing, subfloors, drainage, reha-
bilitation of building systems such as electrical, plumbing,
built-in heating and air conditioning, roof replacement and
similar projects." 65 Fed. Reg. at 26,069.
The concessioners object that § 51.67 allows LSI only for
"projects costing more than 50% of a structure's replacement
costs...." 36 C.F.R. § 51.67. What types of "projects" they
do not say. If the project is a "capital improvement" it is
added to the LSI no matter what the cost of construction.
See 142 F. Supp. 2d at 83. If the project is for repair and
maintenance it does not qualify, as even the concessioners
agree. The 50% regulation--s 51.67--deals with the question
whether an outlay that would otherwise be considered an
expenditure for repair and maintenance should constitute a
capital improvement because, for instance, the repairs are so
extensive. How a particular project should be classified will
depend greatly on the particular facts, as it does even in tax
cases. See INDOPCO, Inc., 503 U.S. at 86. Nonetheless, the
parties quarrel about hypothetical projects. The Park Ser-
vice says that if a concessioner replaced a damaged dry wall
or a rotted beam in a building these would not qualify as
capital improvements and thus would not be included in the
concessioner's LSI. Brief for Appellees at 36; 65 Fed. Reg.
at 20,656. The concessioners argue that the cost of replacing
a hotel's brick fireplace would be included. 142 F. Supp. 2d
at 83. Replacement of a foundation, according to the conces-
sioners, also would clearly be a capital improvement; accord-
ing to the Park Service it would not qualify because a
foundation is "merely a component of a structure," rather
than a "structure, fixture or nonremoveable equipment."
Compare Brief for Appellants at 44 with Brief for Appellees
at 39. This last dispute arises because the repair and mainte-
nance reserve clause in the standard contract mentions foun-
dations. But all the clause says is that repair and mainte-
nance "may" include repair or replacement of foundations.
65 Fed. Reg. at 26,069.
The district court, after considering these arguments and
others, thought it could not give a definitive answer to the
issues thus posed. Echoing Reno v. Flores, 507 U.S. at 301,
and NCIR, 502 U.S. at 188, without citing the cases, the court
ruled as follows: "the Court cannot say that the regulation,
on its face, will be unlawful in its every application. Thus,
this challenge to the regulation must fail." 142 F. Supp. 2d at
85. The court was referring only to the concessioners' attack
on the "Repair and Maintenance Reserve" clause but we
think its reasoning applies equally to the 50% rule in § 51.67.
It is entirely possible that a project calling for repairs to a
roof, the replacement of floor boards, the renovation of wiring
and plumbing, and so forth would not ordinarily qualify as a
"capital improvement." Yet if the total cost of the repair
project exceeded 50% of the pre-repair value of the structure
it would be added to the LSI. See 36 C.F.R. ss 51.51, 51.67.
In that circumstance a concessioner would have no cause for
complaint. On the other hand, if the rehabilitation project
satisfied the statutory and regulatory definition of a "capital
improvement" it would be unlawful for the Park Service to
invoke § 51.67 and refuse to treat the expenditure as an
addition to the concessioner's LSI. We do not suggest that
the Park Service would do anything of the sort. See 65 Fed.
Reg. at 20,656-57. Our point is that on the face of the
regulations, the most we can imagine is that in some applica-
tions--depending on how the Park Service administers the
LSI regulations--there may be a conflict with the statute.
That is not a sufficient basis for holding the regulations
unlawful on their face, for the reasons given in part I.B. of
this opinion.
B.
The concessioners have two other problems with the LSI
regulations. The first relates to 16 U.S.C. § 5954(a)(3) and
the valuation of LSI: each concessioner's "leasehold surren-
der interest is equal to the initial value (construction cost of
the capital improvement), increased (or decreased)" by a
percentage measured by the Consumer Price Index, less
depreciation. The implementing regulation, 36 C.F.R.
s 51.51, defines "construction cost" as "the total of the in-
curred eligible direct and indirect costs necessary for con-
structing or installing the capital improvement...." "Eligi-
ble direct and indirect costs" are costs "in amounts no higher
than those prevailing in the locality of the project," id. It is
this "locality" limitation to which the concessioners object.
Projects in national parks, they tell us, are almost always
more expensive to construct than "similar private projects in
nearby localities, and Congress could not reasonably have
intended that concessioners swallow such costs without LSI
credit," a point the Park Service does not dispute. Brief for
Appellants at 47-48. But as the Park Service points out, the
concessioners' argument assumes that "locality" means out-
side the national park. The regulations do not so state and
we see no basis for indulging in that assumption. It may be
that the Park Service's particular interpretation regarding a
particular project in a particular national park could unrea-
sonably limit the valuation of a concessioner's LSI. But that
is no reason to hold that the regulation conflicts with the
statute or that it is arbitrary. If a concessioner has its own
construction company, as some apparently do, nothing in the
1998 Act requires the Park Service to accept whatever
amount the concessioner decides to charge itself for the
construction work. See 65 Fed. Reg. at 20,651. Like the
district court, we therefore sustain the regulation.
The concessioners' remaining problem with the LSI regula-
tions deals with 16 U.S.C. § 5954(a)(5): if the concessioner
"makes a capital improvement to an existing capital improve-
ment in which the concessioner has a leasehold surrender
interest, the cost of such additional capital improvement shall
be added to the then current value of the concessioner's
leasehold surrender interest." Their claim is that § 51.65 of
the regulations conflicts with this provision. The regulation
states:
A concessioner that replaces an existing fixture in which
the concessioner has a leasehold surrender interest with
a new fixture will increase its leasehold surrender inter-
est by the amount of the construction cost of the replace-
ment fixture less the construction cost of the replaced
fixture.
36 C.F.R. § 51.65. This regulation is unlawful, according to
the concessioners, because there is nothing in the statute
allowing subtractions from a concessioner's LSI. They also
believe the calculations required by the regulation would be
an administrative nuisance. In the Grand Canyon concession,
for instance, there are about 300 structures with many thou-
sands of fixtures.
The district court sustained the regulation for reasons
given by the Park Service, reasons we also find persuasive.
Without the regulation, concessioners would receive a windfall
every time they removed a fixture and replaced it with a new
one:
If a [concessioner] with a leasehold surrender interest in
the hotel were to replace the hotel furnace once every
five years for 15 years, the plaintiffs' proposed account-
ing would be to increase the leasehold surrender interest
three separate times by the cost of the furnace. Under
this approach, the [concessioner] would hold a leasehold
surrender interest equal to four furnaces, even though
the hotel would only contain one.
142 F. Supp. 2d at 88 n.16. As to the concessioners' textual
argument, it is true that the statute speaks only of additions
not subtractions. But under the regulation the calculation is
of net additions to LSI--the difference between the cost of
the new fixture and the discarded one. When concessioners
replace fixtures for a greater cost, their LSI will increase.
The regulation deals with how much the increase should be.
The statute, which speaks in terms of additions not replace-
ments, does not address that subject. We therefore reject
the concessioners' argument that § 51.65 of the regulations is
inconsistent with 16 U.S.C. § 5954(a)(5). We reject as well
their argument that the regulation is unreasonable. The
Park Service's policy of avoiding the windfalls that would
result without the regulation is reason enough to sustain
s 51.65, despite the administrative burdens it may generate.
III.
The concessioners claim the Park Service wrongly excluded
concessions contracts from coverage under the Contract Dis-
putes Act, 41 U.S.C. 601 et seq. See 36 C.F.R. § 51.3; 65
Fed. Reg. at 20,635.
Enacted in 1978, the Contract Disputes Act provides an
alternative forum for government contract disputes. Rather
than seeking judicial relief in the Court of Federal Claims, a
contractor may appeal decisions by a contracting official to an
administrative board within that agency. 41 U.S.C. § 607.
The board's decision may be appealed to the U.S. Court of
Appeals for the Federal Circuit. 41 U.S.C. § 607(g).
Section 51.3 of the regulations states that concession con-
tracts are not "contracts" within the meaning of the Contract
Disputes Act. 36 C.F.R. § 51.3 (2000). With this we agree.
The Act applies to any "express or implied contract" for the
"procurement" of "property," "services" or "construction."
41 U.S.C. § 602(a)(2). A procurement contract, the Park
Service reasoned, "is a contract for which the government
bargains for, and pays for, and receives goods and services."
65 Fed. Reg. at 20,635. Concession contracts are not of that
sort. Their function is not to procure services or goods for
the government. Instead, as the Park Service put it, conces-
sion contracts "authorize third parties to provide services to
park area visitors." Id. While the Park Service does not
administer the Contract Disputes Act, and thus may not have
interpretative authority over its provisions, its reasoning finds
support not only in the terms of that statute but also in the
National Parks Omnibus Management Act of 1998, under
which the Park Service may enter into concession contracts
"to authorize a person, corporation or other entity to provide
accommodations, facilities and services to visitors to" national
parks. 16 U.S.C. § 5952. The Committee reports accompa-
nying the 1998 Act also concluded that concession "contracts
do not constitute contracts for the procurement of goods and
services for the benefit of the government or otherwise,"
S. Rep. No. 105-202, at 39 (1998); H.R. Rep. No. 105-767, at
43 (1998), a position the Park Service had reached earlier
with respect to concession contracts under the 1965 Act. See,
e.g., Concessions Contracts and Permits, 57 Fed. Reg. 40,496,
at 40,498 (Sept. 3, 1992) (reiterating that the Park Service
"has never considered [concessions contracts] a type of feder-
al procurement contract"). The Court of Federal Claims,
considering the nature of concession contracts, also concluded
that "this arrangement does not constitute a procurement,
but is a grant of a permit to operate a business." YRT Servs.
Corp. v. United States, 28 Fed. Cl. 366, 392 n.23 (1993). The
decision rested, in part, on the fact that "the government is
not committing to pay out government funds or incur any
monetary liability." Id.
As against this analysis, the concessioners cite several
decisions of the Interior Department Board of Contract Ap-
peals [IBCA], a body created by Interior Department regula-
tions, see 41 U.S.C. § 607(a); 43 C.F.R. § 4.100 et seq. (2000).
The IBCA has held that the Contract Disputes Act applies to
concession contracts. See, e.g., Appeal of Watch Hill Conces-
sion, Inc., IBCA No. 4284-2000, 2001 WL 170911 (2001);
Appeal of Nat'l Park Concessions, Inc., IBCA No. 2995, 1994
WL 462401 (1994). But the decisions of this body "on any
question of law shall not be final or conclusive." 41 U.S.C.
s 609(b). And the IBCA's rationale for determining that
concession contracts are procurement contracts is flawed. In
its first opinion to consider the issue, the IBCA acknowledged
that the Contract Disputes Act does not cover all contracts
but then assumed that the Act does apply unless coverage is
explicitly foreclosed. See Appeal of R & R Enters., IBCA
No. 2417, 1989 WL 27790, at 24-25 (Mar. 24, 1989). Nothing
in the Act suggests such a sweeping presumption. Another
IBCA opinion states that if any "benefit" can be traced to the
government, then the Contract Disputes Act must apply.
Appeal of Nat'l Park Concessions, Inc., IBCA No. 2995, 1994
WL 462401, at 14 (Aug. 18, 1994). The primary purpose of
concessions contracts is to permit visitors to enjoy national
parks in a manner consistent with preservation of the parks.
16 U.S.C. § 5951. That the government receives monetary
compensation or incidental benefits from the concessioners'
performance is not enough to sweep these contracts into the
ambit of the Contract Disputes Act.
IV.
The concessioners' last complaint deals with the portion of
the new regulations designed to deal with transactions involv-
ing corporate concessioners (see 65 Fed. Reg. at 20,661). One
of the regulations states:
The concessioner may not assign, sell, convey, grant,
contract for, or otherwise transfer (such transactions
collectively referred to as "assignments" for purposes of
this part), without the prior written approval of the
Director, any of the following:
(a) Any concession contract;
...
(c) Any controlling interest in a concessioner or con-
cession contract;
...
36 C.F.R. § 51.85(a) & (c). A similar regulation prohibits,
without prior approval, any "encumbrance" of a "controlling
interest in a concessioner." 36 C.F.R. § 51.86(c). In the
concessioners' view, the regulations extend beyond the stat-
ute. The 1998 Act forbids any "concessions contract "from
being "transferred, assigned, sold, or otherwise conveyed or
pledged by a concessioner" without government approval. 16
U.S.C. § 5957(a). Approval must be given unless "the entity
seeking to acquire a concessions contract is not qualified" or
the transfer or conveyance would otherwise adversely affect
performance of the contract in a manner specified in 16
U.S.C. § 5957(b). The crucial difference between the regula-
tions and the statute, the concessioners say, is that the
regulations require approval of transactions dealing not only
with the transfers or assignments of concession contracts but
also with changes in control of the concessioner. The Park
Service responds that its change-of-control rule ensures that
unqualified persons do not wind up holding concession con-
tracts. Unlike individuals, a corporation can in effect trans-
fer a concession contract by selling its stock to another entity.
65 Fed. Reg. at 20,661. As the Park Service sees it, the
regulations are a permissible construction of the statutory
phrase "otherwise conveyed or pledged," an argument with
which the district court agreed. 142 F. Supp. 2d at 90-91.
How the Park Service regulations will operate does not
exactly leap from the pages of the Federal Register. It is
easy enough to see that if X corporation wanted to sell all its
assets, including its concession contract, it would first have to
get approval of the Director of the Park Service. No one
doubts that the regulation properly requires as much. The
Park Service also believes that if the non-public X corporation
structured the transaction as a sale of 100% of its stock
instead of an asset sale, there would be no functional differ-
ence as far as the concession contract is concerned. See
Alarm Indus. Communications Comm. v. FCC, 131 F.3d
1066, 1070-71 (D.C. Cir. 1997). It is only a short leap to the
conclusion that if, rather than a sale of 100% of the stock, X
corporation sold some lesser amount representing a control-
ling interest, this too should require prior approval. The
regulations define controlling interest in much the same
manner as the Securities and Exchange Commission, see, e.g.,
17 C.F.R. § 210.1-02(g), that is, not in terms of any particular
percentage of outstanding voting stock. Rather, a "control-
ling interest" in a corporate concessioner constitutes "suffi-
cient outstanding voting securities" of "the concessioner or
related entities that permits the exercise of managerial au-
thority" over the concessioner. 36 C.F.R. § 51.84.
Beyond these simple examples we enter a vale of ambigui-
ty. Transactions of the sort just described are not the focus
of the concessioners' concern. Their problem is that the
regulations--as they read them--require Park Service ap-
proval of transactions undertaken by the concessioners'
"shareholders or their affiliates." Brief for Appellants at 55.
But do they? The shareholders of incorporated concessioners
are typically not individuals but parent corporations. The
Park Service reports that "many" of its concessioners "are
corporations that hold a concession contract as their exclusive
business activity" and that almost all of the largest conces-
sioners are "wholly owned subsidiaries of larger corpora-
tions." 65 Fed. Reg. at 20,661. One of the plaintiffs here,
ARAMARK Sports and Entertainment Services, Inc., is a
wholly-owned subsidiary of ARAMARK/HMS Company,
which is a wholly-owned subsidiary of ARAMARK Sports and
Entertainment Group, Inc., which is a wholly-owned subsid-
iary of ARAMARK Corporation, which is listed on the New
York Stock Exchange. Brief for Appellants at iv.
Wholly-owned means, in the case of incorporated subsidiar-
ies, that the parent corporation holds all of the subsidiary
corporation's stock. What worries the concessioners is that
transactions by the parent could potentially require Park
Service approval if a change in control would result. But the
regulations do not read that way. The critical provision is 36
C.F.R. § 51.8. It speaks only of sales, assignments, convey-
ances and so forth by the "concessioner." The term "conces-
sioner," in regulatory parlance, "is an individual, corporation,
or other legally recognized entity that duly holds a concession
contract," 36 C.F.R. § 51.3--a definition that at least on its
face encompasses only the subsidiary corporation, not the
parent. It therefore appears that if the parent corporation
engages in a sale-of-control transaction, this would not re-
quire approval because the concessioner--the subsidiary cor-
poration--would not be doing the selling. The attorneys for
the Park Service say, in their brief, that the regulations do
indeed cover transactions by the corporate concessioner's
parent company. Brief for Appellees at 53-54. But they do
not parse the language of the regulations, and they point to
nothing in the Park Service's explanation of its regulations
that goes so far. In fact, the Park Service justified its
regulations on the basis that it would be "anomalous" if a
"corporate concessioner" could sell "its stock to a new party
(sale of a controlling interest)" without having to seek Park
Service approval. 65 Fed. Reg. at 20,661. If, despite the
language of the regulations, transactions at the parent level
are also supposed to be covered, we are far from certain how
the Park Service intends to implement its rules. An investor
might begin purchasing stock of the parent corporation of a
corporate-concessioner on the open market. Must the con-
cessioner corporation go to the Park Service and ask for
approval of the outsider's purchases of the parent when the
outsider's percentage of the outstanding shares reaches some
magic number? That makes no sense. Neither the conces-
sioner corporation nor the parent corporation has any control
over the purchaser. Perhaps this is why the regulation
seems to speak only in terms of the concessioner selling its
stock. If the regulations do not cover the transaction just
mentioned, but do cover a sale of control by a parent corpora-
tion, the Park Service would have to justify a rule that allows
an outsider, a complete stranger, to gain a "controlling inter-
est" through open market purchases but requires approval
before the parent makes a block sale to the same person.
Control of the parent, and thus of the subsidiary concession-
er, would transfer in both situations, and under the Park
Service's theory, so would the concession contract, yet the one
transaction would be regulated and the other not.
The short of the matter is that we do not know whether the
problems the concessioners identify exist. We cannot be sure
that the Park Service will apply its sale-of-control regulations
to transactions involving only sales of stock by corporate
concessioners (as distinguished from open market sales by
shareholders or sales by a parent company of its stock). The
questions thus raised, and the other questions posed by the
many possible forms of corporate restructuring (see, e.g., 1
Martin D. Ginsburg & Jack S. Levin, Mergers, Acquisitions,
and Buyouts p 105 (2001)), present "too many imponderables"
to permit judicial review at this time. Clean Air Implemen-
tation Project v. EPA, 150 F.3d at 1200. This aspect of the
case, in other words, is not ripe. See Media Access Project v.
FCC, 883 F.2d 1063, 1070 (D.C. Cir. 1989). The "classic
institutional reason" for postponing review is the "need to
wait for a 'rule to be applied [to see] what its effect will be,' "
Louisiana Envtl. Action Network v. Browner, 87 F.3d 1379,
1385 (D.C. Cir. 1996) (quoting Diamond Shamrock Corp. v.
Costle, 580 F.2d 670, 674 (D.C. Cir. 1978)). The issues here
can be presented in a more "concrete" setting. Abbott Labs.
v. Gardner, 387 U.S. 136, 148 (1967); Ass'n of Am. R.R., 146
F.3d 942, 946 (D.C. Cir. 1998). The regulations state that
"[a]ssignments" without the prior approval of the Park Ser-
vice will be considered "null and void" and will be viewed as a
"material breach of the applicable concession contract which
may result in termination of the contract for cause." 36
C.F.R. § 51.88. Whether this means the Park Service will
deem transfers of controlling interests in a concessioner's
parent as "null and void" is not at all clear. But the prospect
certainly can give rise to an interested party's seeking the
Park Service's judgment that its proposed transaction does
not need approval. A lawsuit could be brought if the conces-
sioner is dissatisfied with the answer. Then at least the court
would have some idea of what the Park Service thinks its
regulations cover. Then too the validity of the regulations, as
thus interpreted, could be determined in light of the language
of the statute, which speaks only of transfers of concession
contracts.
The possible hardship to the concessioners in waiting does
not alter our conclusion that the issues are not ripe. No
concessioner has indicated that a transfer of control is immi-
nent. We therefore have no reason to believe that in the
immediate future they will have to alter their conduct to their
disadvantage. Contrast Abbott Labs., 387 U.S. at 152. It
may be that matters cannot be sorted out without further
litigation but that is not the sort of hardship we recognize in
evaluating whether a case is ripe for review. See, e.g., Clean
Air Implementation Project, 150 F.3d at 1206.
Our conclusion that this aspect of the case is not ripe
differs from that of the district court, which ruled against the
concessioners' claim on its merits. We therefore vacate the
district court's judgment in this respect.
* * *
The judgment of the district court is affirmed in part,
reversed in part and vacated in part. The case is remanded
for further proceedings, consistent with this opinion, on Am-
fac's as-applied challenge to regulations concerning the pref-
erential right of renewal.
So ordered.