Appeal
from the United States District Court for the Southern
District of Georgia D.C. Docket No. 2:12-cv-00095-LGW-RSB.
Before
TJOFLAT and ROSENBAUM, Circuit Judges, and KAPLAN, [*] District Judge.
ROSENBAUM, Circuit Judge:
Although
Otis Redding may have enjoyed wasting time by watching ships
roll into the Dock of the Bay, [1] if he were sitting on Cumberland
Island's BrickKiln Dock, he truly would be wasting his
time, waiting in vain for ships that would never come.
That's because dynamic environmental forces at play on
Georgia's barrier islands have caused large amounts of
sediment and siltation to render the waters around Brick-Kiln
Dock increasingly shallow, making the dock inaccessible to
most vessels. The Candler family, which uses the dock to
access property located within the boundaries of Cumberland
Island National Seashore, has sought to move or extend the
dock to improve its accessibility. But the National Park
Service, which manages the seashore, has refused to allow
changes to the dock in order to protect the island's
wilderness character.
So the
family has sued, arguing that the deed by which the Candlers
conveyed the island property to the government and reserved
the right to continue to use the dock permits them to
relocate the dock. Alternatively, the family contends that
the Park Service's denial of permission to relocate or
extend the dock is arbitrary and capricious, in violation of
the Administrative Procedure Act. After careful review and
with the benefit of oral argument, we must conclude that
"nothin's gonna change"[2] from the district court's decision,
since neither the deed nor federal law supports the
Candlers' position.
I.
Background
A.
Cumberland Island and High Point Compound
Cumberland
Island is Georgia's largest barrier island, located off
the southeast coast of the state. The island consists of
uplands, [3] marshlands, [4] and various creeks. It is bounded by
Cumberland Sound and the Cumberland River to the west and the
Atlantic Ocean to the east. Historically, certain families
used the island as an isolated vacation retreat. Among them,
the Carnegie family claimed ownership of most of the
island's uplands. The northernmost tract of land owned by
the Carnegies was Tract 5N (also known as 5-N or N-5).
In
1930, Charles Howard Candler, Sr.-eldest son of Coca-Cola
magnate Asa Candler-purchased property on the northern end of
Cumberland Island in an area that came to be known as High
Point. Over time, the Candlers acquired approximately 1300
acres of property on the island, including the 38-acre parcel
now described as the High Point Compound (the
"Compound").
In
1958, the Candler family conveyed the property's
ownership to High Point, Inc., which was later succeeded by
Appellant High Point, LLLP ("High Point"), a
corporation made up of Candler's descendants. To permit
easier access to the Compound, the Carnegie family allowed
the Candlers to build Brick-Kiln Dock (the "Dock")
in Tract 5N. The Dock, which extends from the uplands portion
of Cumberland Island into the marshlands and, specifically,
Hawkins Creek (a tributary of the Brickhill River), is
roughly 3.5 miles from the Compound. See Appendix.
Although
the island has an airstrip, visitors to the Compound arrive
primarily by boat. When traveling to the island, the Candler
family departs by boat from nearby Jekyll Harbor Marina and
traverses intracoastal sounds, creeks, and rivers on its way
to the Dock. The distance between Jekyll Harbor and the Dock
is approximately 11.8 miles, and the journey lasts for
roughly 45 minutes. Upon arrival at the Dock, travel to the
Compound takes 15-20 minutes by automobile over the
island's unpaved roads.
Cumberland
Island has other docks managed by the National Park Service
("Park Service"), including the public Plum Orchard
Dock and Sea Camp Dock. And while High Point itself owns
other docks on Christmas Creek, known as Willow Dock and
Cedar Dock, these do not provide deep-water access to the
island.
B.
Designation as a National Seashore
Beginning
in 1970, the United States, through the National Park
Foundation, began acquiring land on Cumberland Island with a
view towards establishing a national park. On September 29,
1970, the Foundation acquired Tract 5N from the Carnegie
family's Cumberland Island Holding Company. The deed
conveying Tract 5N reserved "an easement as long as [the
Cumberland Island Holding Company] owns real property or an
Estate for Years on Cumberland Island, Georgia, for its
invitees, licensees, and assigns, to use the roads, dock, and
airstrip."
In
1972, Congress established the Cumberland Island National
Seashore. 16 U.S.C. §§ 459i - 459i-9 (the
"Seashore Act"). With respect to private property
owners, the legislation authorized the Secretary of the
Interior to acquire lands within the designated boundaries by
purchase, donation, transfer, or exchange. 16 U.S.C. §
459i-1. In negotiating for the properties, the Secretary
could allow private land owners on the island to retain
"a right of use and occupancy of the property for
noncommercial residential purposes" for a term of 25
years or the life of the owner. 16 U.S.C. §459i-3(a).
The
Seashore Act also required the island to be "permanently
preserved in its primitive state, " with the exception
of development for certain public recreation activities. 16
U.S.C. § 459i-5(b).
Finally,
as relevant here, the Seashore Act directed the Secretary to
recommend to the President the suitability of the national
seashore for designation as wilderness under the Wilderness
Act of 1964, 16 U.S.C. § 1132. The Wilderness Act of
1964, in turn, establishes a system for preserving federal
lands in their "primeval" and
"undeveloped" state, "untrammeled by
man." 16 U.S.C. § 1131. The statute, which allows
Congress to designate areas as wilderness on the
recommendation of the President, 16 U.S.C. § 1132,
requires wilderness areas to be administered "in such
manner as will leave them unimpaired for future use and
enjoyment as wilderness, and so as to provide for the
protection of these areas, the preservation of their
wilderness character, and for the gathering and dissemination
of information regarding their use and enjoyment as
wilderness." 16 U.S.C. § 1131(a).
C.
Conveyance of High Point's Property to the United
States
Since
Cumberland Island's designation as a national seashore,
the United States has acquired title to a majority of the
privately owned land on the island. With respect to High
Point, negotiations began in the early 1970s and culminated
years later in 1982, with High Point's sale of and
corresponding conveyance of fee simple title to its
Cumberland Island property.[5]
In
furtherance of this transaction, before the end of 1981, the
parties executed an Option Agreement for the sale of High
Point's property subject to the terms and conditions of
an attached Purchase and Sale Agreement. The Purchase and
Sale Agreement specifically conditioned sale on the
reservation of a right, free from interference, "to
continue to use the area presently known as the Brick-Kiln
Dock located on Hawkins Creek in tract N-5 Cumberland Island,
Georgia." Beyond reserving use of the Brick-Kiln Dock,
the Purchase and Sale Agreement also reserved to High Point
rights to use the Christmas Creek docks, the airstrip, and
the island's roads as well as "easements and rights
of access, ingress and egress by water and air as presently
existing and used by [High Point]." The duration of the
reserved rights extended to the death of the last surviving
named shareholder of the corporation, who is currently
roughly 35 years old.
In
anticipation of the acquisition, the Park Service
commissioned an appraisal of the property. The appraiser
concluded that "use of [the Dock], airstrip, main road
and beach road, as well as exclusive use of the beach cabana,
are necessary to the full use and enjoyment of the property
as it exists today." Without the airstrip or Dock, the
appraiser determined, restoring satisfactory all-weather
access to High Point's property would require "an
extensive investment."
On
January 20, 1982, High Point executed a warranty deed
conveying its property to the United States. The deed
warranted title to all of the property above the high-water
mark "but expresse[d] no warranty as to the title to
those lands lying between the high and low water marks in the
above-described lands, (including all marsh, beach, and tidal
branches, rivers, streams, oceans, sounds, and other bodies
of water), and of title to the land underlying said bodies of
water."
Among
other rights, the deed reserved rights to the High Point
shareholders for the remainder of their lives for use
"of the area presently known as Brick-Kiln
Dock."[6] And, while the deed gave
High Point four years to rebuild and modernize various
dwellings located on the Compound without interference from
the Park Service, after that time, High Point was prohibited
from materially changing the character of any existing
improvements or structures, performing new construction, or
altering the topography of the land without the approval of
the Park Service.[7] Nevertheless, the
deed allowed High Point to conduct "normal
maintenance" and repairs on the property's existing
improvements and structures.[8]
Of
note, the deed also contained language memorializing the
parties' intent in High Point's conveyance of the
property and its reservation of rights of use. That language
described the intent as being to preserve the area "in
its natural state as a part of Cumberland Island National
Seashore."[9]
D.
Designation as Wilderness
As we
have noted, the Seashore Act instructed the President to
evaluate whether areas of Cumberland Island National Seashore
should be designated as wilderness under the Wilderness Act.
16 U.S.C. § 459i-8. In accordance with this provision,
on the Park Service's recommendation, Congress designated
8, 840 acres of Cumberland as wilderness under the Wilderness
Act and 11, 718 acres as "potential wilderness"
until such time as prohibited uses of that land ceased. Act
of Sept. 8, 1982, Pub. L. No. 97-250, § 2(a), 96 Stat.
709 ("Designating Act"). The Dock falls into both
categories: while the upland section of Tract 5N on which
part of the Dock sits was designated as wilderness, the
marshlands under the remainder of the Dock were designated as
potential wilderness. The Designating Act provided that
Cumberland Island wilderness areas be managed under the
provisions of the Wilderness Act "[s]ubject to valid
existing rights." Id. § 2(c).
E.
The Current Situation
At some
point before 2008, a portion of the land separating Hawkins
Creek from the Brickhill River breached upstream of the Dock.
As a result, tidal flows that had once swept sediment away
from the Dock into the creek and river no longer do so,
resulting in increased siltation around the Dock. So the
downstream portion of the creek near the Dock has become too
shallow for passenger vessels to navigate except during a
period of about four hours during high tide. High Point
maintains that as siltation continues, the Dock will become
completely unusable as a deep-water dock.
For
this reason, on June 16, 2008, High Point asked the Park
Service for permission to move the Dock approximately 50 to
100 yards north of its current position to another bend in
Hawkins Creek. The Park Service rejected the request,
concluding that the deed did not give High Point a right to
move or expand the Dock, and in the absence of such a right,
the Wilderness Act prohibited relocating the Dock.
Over
the next four years, the parties continued negotiating, with
High Point proposing two alternatives-moving the Dock 900
feet south and directly on to the Brickhill River or
extending the existing Dock to the southwest over Hawkins
Creek and marshland and directly into the Brickhill River. At
one point, the Park Service suggested that High Point could
use the public Plum Orchard dock.
High
Point retained environmental consultants to evaluate various
other proposed solutions, but the consultant's report
rejected all potential options as infeasible except the
closing of the breach and the three solutions advanced by
High Point. With respect to the Plum Orchard dock option, the
report deemed it inconvenient because Plum Orchard's
location would increase the total travel time from Jekyll
Harbor to the Compound to one-and-one-half or two hours,
increase the distance the Candler family would have to travel
over "bumpy roads" on the island, and force the
Candler family to compete with members of the public for dock
space.
Although
the Park Service continued to reject High Point's
requests to implement one of the relocation or extension
options, in 2011, it asked High Point to provide extrinsic
evidence regarding the parties' intentions regarding the
Dock and access to the island at the time they executed the
deed.
After
reviewing this information, the Park Service agreed that the
Dock, as currently situated, was essential to High Point and
that siltation was a kind of "deterioration by the
elements" that could permit repair of the dock in its
current location. But the Park Service held firm to its
position that nothing in the reserved-rights language of the
deed allowed for reconstruction or relocation of the Dock.
For this reason, the Park Service advised High Point that
dredging Hawkins Creek, repairing the breach, or using Plum
Orchard dock were the only permissible options.
The
Park Service later withdrew its approval of closing the
breach since that option would entail construction in a
potential wilderness area. As for the dredging option, the
Park Service later clarified that although the agency would
not oppose dredging, it would be obliged to present to
Georgia state officials "objective comments" on the
environmental impacts of dredging. But High Point itself had
separately concluded that the dredging option would be too
expensive, ...