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High Point, LLLP v. National Park Service

United States Court of Appeals, Eleventh Circuit

March 8, 2017

HIGH POINT, LLLP, Plaintiff - Appellant
NATIONAL PARK SERVICE, et al., Defendants-Appellees.

         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, ...

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