 In the United States Court of Federal Claims
                                  No. 13-291 C
                               Filed: July 25, 2014
****************************************
                                         *
                                                Administrative Procedure Act, 5 U.S.C. §§ 701–06
                                         *
                                                     et seq.;
                                         *
                                                Competition in Contracting Act,
                                         *           41 U.S.C. § 3301 et seq.;
                                         *      Cooperative Farming Agreements;
                                         *      Cooperative Land Management,
                                         *           50 C.F.R. § 29.2 (1960);
                                         *      Exec. Order. No. 12,996 (61 FED. REG. 13,647
                                         *           (Mar. 25, 1996));
                                         *      Federal Grant and Cooperative Agreement Act,
                                         *           Pub. L. No. 95-224, 92 Stat. 3 (1978),
                                         *           codified, as amended, 31 U.S.C. §§ 6301–08;
                                         *      Fish and Wildlife Act, Pub. L. No. 84-1024, 70
                                         *           Stat. 1120 (1956);
                                         *      Fish and Wildlife Coordination Act, Pub. L. No.
                                         *           73-121, 48 Stat. 401 (1934), codified, as
JAY HYMAS d/b/a DOSMEN FARMS,            *           amended, at 16 U.S.C. §§ 661–667e;
                                         *      Fish and Wildlife Coordination Act, Pub. L. No.
      Plaintiff,                         *           85-624, 72 Stat. 563 (1958), codified at 16
                                         *           U.S.C. § 661;
v.                                       *      Judgment on the Administrative Record;
                                         *      Jurisdiction;
THE UNITED STATES,                       *      National Wildlife Refuge System Administration
                                         *           Act, Pub. L. No. 89-669, 80 Stat. 927 (1966),
                                                     codified, as amended, at 16 U.S.C. § 668dd;
      Defendant.                         *
                                                National Wildlife Refuge System definitions (50
                                         *
                                                     C.F.R. § 25.12 (1960));
                                         *      National Wildlife Refuge System Improvement
                                         *           Act, Pub. L. No. 105-57, 111 Stat. 1252
                                         *           (1997);
                                         *      National Wildlife Refuge System Volunteer and
                                         *           Community Partnership Enhancement Act,
                                         *           Pub. L. No. 105-242, 112 Stat. 1574 (1998),
                                         *           codified, as amended, at 16 U.S.C. §§ 742a,
                                         *           742f;
                                         *      National Wildlife Refuge Volunteer Act, Pub. L.
                                         *           No. 108-327, 118 Stat. 1271 (2004);
                                         *      Public Law No. 79-732, 60 Stat. 1080 (1946);
                                         *      Public Law No. 80-537, 62 Stat. 240 (1948);
                                         *      RCFC 37(c) (Failure to Disclose, to Supplement
                                         *           an Earlier Response).
****************************************
James Patrick Schaefer, Pro Bono Law, Palo Alto, California, Counsel for Plaintiff. 1

Douglas Glenn Edelshick, United States Department of Justice, Civil Division, Washington,
D.C., Counsel for the Government.

                     MEMORANDUM OPINION AND FINAL ORDER

BRADEN, Judge.

        Since the 1970s, the United States Department of the Interior’s (“Interior”) United States
Fish and Wildlife Service (the “Service”) has awarded cooperative farming agreements to private
individuals (“farmer-cooperators”) who raise commercial crops on public lands in National
Wildlife Refuges, if they agree to reserve a portion of their crops to feed migratory birds and
wildlife. 2

         In 2012, Jay Hymas (“Plaintiff” or “Mr. Hymas”) requested that the Service award him a
cooperative farming agreement. The Service rejected him, because it utilized a “priority
system,” that affords incumbent farmer-cooperators preferential status. On April 25, 2013, Mr.
Hymas filed a bid protest in the United States Court of Federal Claims challenging the Service’s
failure to award cooperative farming agreements on a competitive basis and seeking injunctive
relief. Thereafter, the court stayed the case to allow the Service to consider Mr. Hymas’s interest
in being selected as a farmer-cooperator for the 2014 farming season. On or about January 21,
2014, the Service notified all of the incumbent farmer-cooperators that they had been selected to
participate in the program for 2014; again Mr. Hymas was rejected, because he did not satisfy the
Cooperative Farming Selection Process’s “priority system.” On January 24, 2014, the court
lifted the stay.

       On February 25, 2014, Mr. Hymas filed an Amended Complaint alleging that the
Service’s award of cooperative farming agreements for the 2014 farming season violated the
Competition in Contracting Act, the Federal Grant and Cooperative Agreement Act, and the
Administrative Procedure Act.




       1
         Plaintiff appeared pro se until January 29, 2014, when Mr. Schaefer entered an
appearance as Counsel of Record on behalf of Plaintiff.
       2
          See DEP’T OF THE INTERIOR, FINAL ENVIRONMENTAL STATEMENT: OPERATION OF THE
NATIONAL WILDLIFE REFUGE SYSTEM, at II-50 (1976) (“In F.Y. 1974, 611 cooperative farmers
cultivated 163,000 acres of refuge land from which they received an average 70 percent share
and harvested 1,307,249 tons of crops.”); see also id. at III-13 (“Cooperative farming is done on
107 refuges, as well as on some of the larger Waterfowl Production Areas. . . . Another 24
refuges conduct farming operations using refuge personnel.”).


                                                2
      The court has provided the following outline to facilitate review of this Memorandum
Opinion And Final Order:

I.     THE RELEVANT STATUTES, REGULATIONS, AND AGENCY POLICY
       STATEMENTS GOVERNING REFUGE MANAGEMENT AND COOPERATIVE
       FARMING AGREEMENTS. ............................................................................................. 5
       A.        Statutory Authority. ................................................................................................ 5
       B.        Regulatory Authority. ............................................................................................. 6
       C.        Agency Policy Statements. ..................................................................................... 7
                 1.         The Departmental Manual. ......................................................................... 7
                 2.         The Refuge Manual..................................................................................... 7
                 3.         The 1991 Fish & Wildlife Service Manual And The March 25, 1992
                            Director’s Order No. 42. ............................................................................. 9
                 4.         The 1996 Cooperative Land Management Agreement Guidance............... 9
                 5.         The 1996 Umatilla Refuge Cropland Management Plan. ........................... 9
                 6.         The 1999 McNary Refuge Cropland Management Plan........................... 10
                 7.         The December 31, 2006 Amendment 14 To Director’s Order No. 42. .... 11
                 8.         The 2007 Comprehensive Conservation Plan And Environmental
                            Assessment For The McNary And Umatilla Refuges............................... 11
II.    RELEVANT FACTS. ....................................................................................................... 12
       A.        Cooperative Farming Agreements In The McNary And Umatilla Refuges. ........ 12
       B.        The 2013 Farming Season. ................................................................................... 12
III.   RELEVANT PROCEDURAL HISTORY. ...................................................................... 16
IV.    DISCUSSION. .................................................................................................................. 20
       A.        The Government’s Motion To Dismiss. ............................................................... 20
                 1.         The Government’s Argument. .................................................................. 20
                 2.         Plaintiff’s Response. ................................................................................. 23
                 3.         The Court’s Resolution. ............................................................................ 25
                            a.         Subject Matter Jurisdiction. .......................................................... 25
                            b.         Standing ........................................................................................ 27
                            c.         Mootness ....................................................................................... 28
       B.        Plaintiff’s Motion For Judgment On The Administrative Record And The
                 Government’s Response And Cross-Motion. ....................................................... 29



                                                                 3
               1.         Plaintiff’s Argument. ................................................................................ 29
               2.         The Government’s Response And Cross-Motion. .................................... 35
               3.         The Court’s Resolution. ............................................................................ 37
                          a.        Standard Of Review. ..................................................................... 37
                          b.        Whether The Service’s Priority Selection System Violates The
                                    Competition In Contracting Act.................................................... 38
                          c.        Whether Any Of The Statutes Cited By The Government Exempt
                                    The Service From Complying With The Competition In
                                    Contracting Act. ............................................................................ 41
                                    i.         The 1958 Fish And Wildlife Coordination Act. ............... 41
                                    ii.        The 1966 National Wildlife Refuge System Administration
                                               Act. .................................................................................... 42
                                    iii.       The 1998 National Wildlife Refuge System And
                                               Community Partnership Enhancement Act. ...................... 42
                          d.        The Service’s Priority Selection System Violates The Federal
                                    Grant And Cooperative Agreement Act. ...................................... 44
                          e.        The 1958 Act Is Not Ambiguous And, In Any Event, 50
                                    C.F.R. § 29.2 Cannot Exempt The Service From The Competition
                                    In Contracting Act......................................................................... 45
                          f.        The Service Failed To Comply With Regulatory Authority. ........ 47
                                    i.         Standard Of Review. ......................................................... 47
                                    ii.        The Service’s Failure To Comply With The Departmental
                                               Manual Was Arbitrary And Capricious And Prejudiced
                                               Plaintiff. ............................................................................ 48
                                    iii.       The Service’s Reliance On The Refuge Manual Was
                                               Arbitrary, Capricious, Lacked A Rational Basis, And
                                               Prejudiced Plaintiff. .......................................................... 49
     C.        A Permanent Injunction Is Warranted. ................................................................. 51
               1.         Plaintiff’s Argument. ................................................................................ 51
               2.         The Government’s Response And Cross-Motion. .................................... 52
               3.         The Court’s Resolution. ............................................................................ 53
V.   CONCLUSION. ................................................................................................................ 55




                                                               4
Court Exhibit 1: McNary And Umatilla Refuges: Overview. ...................................................... 57
Court Exhibit 2: Umatilla Refuge. ................................................................................................ 58
Court Exhibit 3: McNary Refuge. ................................................................................................. 59
Court Exhibit 4: McNary Refuge, All Fields. ............................................................................... 60
Court Exhibit 5: McNary Refuge, Wallula Unit Field 1............................................................... 61
Court Exhibit 6: McNary Refuge, Burbank Slough Unit Fields 5, 6, and 8. ................................ 62
Court Exhibit 7: Umatilla Refuge, McCormack Unit Fields 1–5. ................................................ 63
Court Exhibit 8: Umatilla Refuge, Whitfield Unit Fields 1–6. ..................................................... 64

I.        THE RELEVANT STATUTES, REGULATIONS, AND AGENCY POLICY
          STATEMENTS GOVERNING REFUGE MANAGEMENT AND COOPERATIVE
          FARMING AGREEMENTS.

          A.        Statutory Authority.

        The 1934 Fish and Wildlife Coordination Act (the “1934 Act”) authorized the Secretaries
of Agriculture and Commerce “to provide expert assistance to and to cooperate with Federal,
State, and other agencies in . . . increasing the supply of game and fur-bearing animals and fish,
in combating diseases, and in developing a Nation-wide program of wild-life conservation and
rehabilitation.” Pub. L. No. 73-121, 48 Stat. 401 (codified, as amended, at 16 U.S.C. §§ 661–
667e).

        In 1946, Congress amended the 1934 Act to assist Federal and State agencies to manage
wildlife through “cooperative agreements” with “Federal, State, and public or private agencies
and organizations.” Pub. L. No. 79-732, §§ 1, 4, 60 Stat. 1080, 1080–81 (codified, as amended,
at 16 U.S.C. §§ 661, 664).

       In 1956, Congress enacted the Fish and Wildlife Act to create the United States Fish and
Wildlife Service. Pub. L. No. 84-1024, § 3, 70 Stat. 1120.

        In 1958, Congress enacted the Fish and Wildlife Coordination Act (the “1958 Act”),
which again amended the 1934 Act “to provide for more effective integration of a fish and
wildlife conservation program with Federal water-resource developments.” Pub. L. No. 85-
624, § 3, 72 Stat. 563 (codified as amended, at 16 U.S.C. §§ 661−64). This Act also retained the
text of the 1946 amendment, instructing the Service “to provide assistance to, and cooperate
with, Federal, State, and public or private agencies and organizations” to protect migratory birds
and wildlife habitat. Id. § 2, 72 Stat. at 563.

        In 1966, Congress enacted the National Wildlife Refuge System Administration Act (the
“1996 Act”) to designate areas within the United States to be set aside for the conservation of
fish, wildlife, and waterfowl, and to create a network of habitats that today comprise the National
Wildlife Refuge System. See Pub. L. No. 89-669, 80 Stat. 926 (codified, as amended, at 16
U.S.C. § 668dd). A later amendment required the Service to develop a Comprehensive
Conservation Plan for each Refuge. See 16 U.S.C. § 668dd(e)(1)(A).




                                                                 5
       In 1978, Congress enacted the Federal Grant and Cooperative Agreement Act. Pub. L.
No. 95-224, 92 Stat. 3 (codified, as amended, at 31 U.S.C. §§ 6301–08) (“FGCAA”). Amended
in 1982, the FGCAA directs federal agencies when to use procurement contracts, cooperative
agreements, or grant agreements. See 31 U.S.C. §§ 6303, 6305.

        In 1984, Congress enacted the Competition in Contracting Act (“CICA”), requiring
federal agencies to use “full and open competition” when procuring “property or services.” 41
U.S.C. § 3301.

       In 1997, Congress enacted comprehensive legislation to manage the National Wildlife
Refuge System (the “1997 Act”), by amending the 1966 National Wildlife Refuge System
Administration Act. See National Wildlife Refuge System Improvement Act, Pub. L. No. 105-
57, 111 Stat. 1252. According to the 1997 Act, the purpose of the Refuge System is to
“conserv[e], manage[], and where appropriate, restor[e] . . . the fish, wildlife and plant resources
and their habitats within the United States for the benefit of present and future generations of
Americans.” Id. § 4, 11 Stat. at 1254 (16 U.S.C. § 668dd(a)(2)).

        In 1998, Congress amended the Fish and Wildlife Act of 1956 “to promote volunteer
programs and community partnerships for the benefit of national wildlife refuges[.]” See
National Wildlife Refuge System Volunteer and Community Partnership Enhancement Act of
1998, Pub. L. No. 105-242, 112 Stat. 1574 (the “1998 Act”). The 1998 Act authorized Interior to
“enter into a cooperative agreement (within the meaning of [the FGCAA]) with any partner
organization, academic institution, or State or local government agency to carry out 1 or more
projects or programs for a refuge[.]” Id. § 5, 112 Stat. at 1574 (16 U.S.C. § 742f(d)(2)(A)).

       In 2004, Congress reauthorized the 1998 Act and added the following text:
“Notwithstanding [the FGCAA], the Secretary of Interior may negotiate and enter into a
cooperative agreement with a partner organization, academic institution, State or local
government agency[.]” 16 U.S.C. § 742f(d)(2)(A).

       B.      Regulatory Authority.

      In 1960, the Service promulgated regulations under the Fish and Wildlife Coordination
Act to govern how the national wildlife refuges should be managed. As to cooperative
agreements, they provide:

       Cooperative agreements with persons for crop cultivation, haying, grazing, or the
       harvest of vegetative products, including plant life, growing with or without
       cultivation on wildlife refuge areas may be executed on a share-in-kind basis
       when such agreements are in aid of or benefit to the wildlife management of the
       area.

50 C.F.R. § 29.2 (“Cooperative land management”); see also Title 50—Wildlife: Revision and
Reorganization of Title, 25 FED. REG. 8,397, 8,413 (Sept. 1, 1960) (notice of final rule, including
50 C.F.R. § 29.2); 25 FED. REG. at 8,409 (requiring the use of “cooperative agreements” for state
cooperation with wildlife refuge management) (codified, as amended, at 50 C.F.R. § 25.12).




                                                 6
       In 1996, the President of the United States established four “guiding principles” for
managing the Refuge System: public use, habitat, partnerships, and public involvement. See
Exec. Order No. 12,996, 61 FED. REG. 13,647 (Mar. 25, 1996).

        On October 18, 2000, the Service issued additional regulations under the National
Wildlife Refuge System Improvement Act of 1997, that defined “refuge management activity” as
conduct, either by the Service or a Service-authorized agent, such as a contractor, that “fulfill[s]
one or more purposes of the national wildlife refuge[.]” 65 FED. REG. 62,458, 62,467 (Oct. 18,
2000) (amending 50 C.F.R. § 25.12 to include definitions of “refuge management activity” and
“refuge management economic activity”). “Refuge management economic activity” was defined
as a “refuge management activity” resulting “in generation of a commodity which . . . can be
sold . . . or traded,” such as “[f]arming.” Id. at 62,481; see also id. at 62,461–62 (discussing
public comments received about the proposed definitions).

       C.       Agency Policy Statements.

        The Service is bound by Interior’s Departmental Manual. In addition, the Service has
issued at least seven other policy statements that discussed how the refuges should be managed.

                1.      The Departmental Manual.

       Interior maintains an online Departmental Manual that is periodically updated. 3 The
Departmental Manual is “the authorized means of documenting and issuing instructions, policies,
and procedures that have general and continuing applicability to Departmental activities.” 011
DEP’T OF INTERIOR DEPARTMENTAL MANUAL (“DM”) § 1.1 (2001). Through the Departmental
Manual, the Secretary communicates instructions and guidance to all of Interior’s components.
See 011 DM § 1.2 (2001). The Departmental Manual “serve[s] as the primary source of
information on organization structure, authority to function, and policy and general procedures.”
011 DM § 1.2 (2001). In the absence of superseding authority, “[b]ureaus and offices must
comply with the provisions of the [Departmental Manual].” 011 DM § 1.2(B) (2001).

                2.      The Refuge Manual.

       In 1942, the Service issued a “Field Manual for Wildlife Refuges.” 4 A second Refuge
Manual was issued in 1957 and a two-volume third edition in 1982. Thereafter, sections of the
Refuge Manual periodically were updated throughout the 1980s. Specifically, in 1985, the
Service revised Section 4, 5 “Cropland Management,” to provide the Service with guidance about
permitted activities within National Wildlife Refuges, stating that, “[i]n situations where

       3
           The Departmental Manual is published at http://elips.doi.gov/elips/browse.aspx.
       4
          See Tom Worthington, U.S. Fish & Wildlife Service, Two Dogs, One Cat and Three
Refuge Manuals, available at http://www fws.gov/refuges/refugeupdate/marchapril_2011/refugemanuals.html
(last updated Feb. 28, 2014) (describing the history of the Refuge Manual).
       5
         The May 24, 1985 version (Release 13) of section 4 of the Refuge Manual is
reproduced at AR 123–39.



                                                  7
[wildlife] objectives cannot be met through maintenance of more natural ecosystems, the more
intensive and artificial method of cropland management may be employed. The acreage devoted
to croplands will be the minimum required to meet approved objectives.” 6 FISH & WILDLIFE
SERV. REFUGE MANUAL (“RM”) § 4.1 (1985). Therein, “cooperative farming” is defined as
“[c]ropland management carried out by a private citizen on refuge lands, under the terms of a
‘Cooperative Farming Agreement,’ in which the cooperator (private citizen) provides labor,
equipment, and materials and the Government provides land, equipment, and/or materials and
the resulting crop is shared by the cooperator and the Government.” 6 RM § 4.3(B) (1985).
Refuges that wanted to utilize “cooperative farming” were instructed to submit an approved
current cropland management plan to the Service, “upon which annual operations and changes
[would be] based.” 6 RM § 4.4(A) (1985). In addition, “[a]ll contract farming [was to] be
documented,” by a “contract farming agreement” that must be compatible with the “purposes for
which the refuge was established.” 6 RM § 4.4(D) (1985). Potential farmer-cooperators would
be selected “according to the procedures outlined in 5 RM 17.” 6 RM § 4.8(A)(3) (1985).
Cooperative farming agreements were “normally” intended to be multi-year agreements, because
“[c]ooperators should be given a long-term interest in the stewardship of the soil.” 6
RM § 4.8(A)(1) (1985).

       Section 17 of the Refuge Manual, “Administration of Special Uses,” 6 identifies three
methods for selecting “permittees.” The preferred method is the use of formal or informal
competitive bids. See 5 RM § 17.11(A)(1)(c) (1986) (“Generally, use of one of the above-
described processes [competitive bids or other equitable process] is preferable to a priority
system.”); see also 5 RM § 17.11(A)(1)(a) (1986) (“To avoid favoritism in the bid process, the
manager should request bid quotations from any persons or agencies who may be interested in
the specialized use.”). An alternative method allows the Service to use equitable selective
procedures, “such as lottery, auction, or first-come, first-served.” 5 RM § 17.11(A)(1)(b) (1986).
Where a “priority system is more appropriate to program needs,” however, the Service also could
select participants in the following order of priority: (1) previous cooperators; (2) former
landowners; (3) former tenants; (4) resident neighbors; (5) non-resident neighbors; (6) applicants
from outside the local vicinity. See 5 RM § 17.11(A)(1)(c) (1986). Section 17 also states that
cooperative farming agreements are “a type of Special Use Permit,” not a formal cooperative
agreement. 7 5 RM § 17.11(C)(1)(d) (1986) (referencing Cooperative Farming Agreement Form
3-1492; Addendum Form 3-1492a; 6 RM § 4; 50 CFR § 29.5).



       6
        The August 20, 1986 version (Release 15) of sections 17 through 17.14 of the Refuge
Manual, together with section 17 exhibits 1–7, is reproduced at AR 140–74. The October 21,
1986 version (Release R-007) of section 17.9 of the Refuge Manual is reproduced at AR 175–78.
       7
          The Refuge Manual defines “Special Use Permit” as a “permit issued for special
recreation for uses such as group activities, recreation events, motorized vehicles, and other
specialized uses.” 5 RM § 17 Ex. 7 at 2 (1986) (reproduced at AR 174). In contrast,
“[c]ooperative agreements are formal agreements executed by the Service involving the
exchange of goods, services, or privileges, but not financial transactions[.]”               5
RM § 17.11(C)(1)(d) (1986).



                                                8
                3.      The 1991 Fish & Wildlife Service Manual And The March 25, 1992
                        Director’s Order No. 42.

        In 1991, the Service issued the first Fish & Wildlife Service Manual to provide internal
policy and management guidance. 8 See 011 FISH & WILDLIFE SERV. MANUAL (“FW”) § 1
(2006) (“Description, Authority, and Responsibilities for the Service Manual”). On March 25,
1992, Director’s Order No. 42 9 revoked “all manuals, handbooks, and other directives issued
prior to May 29, 1991,” as of September 30, 1993. The stated purpose of this Order was to
consolidate “the myriad of separate manuals, handbooks, and other directives within the Service”
into the Service Manual. Pl. MJAR at App’x 585; Gov’t Mot. 30–31.

                4.      The 1996 Cooperative Land Management Agreement Guidance.

       On January 29, 1996, the Assistant Regional Director for Refuges and Wildlife issued
“Cooperative Land Management Agreement Guidance” (“1996 Guidance”). AR 179–81.
Therein, Cooperative Land Management Agreements were described as “especially appropriate
for working with non-profit organizations to reach refuge goals” and “guided by a share-in-kind
principal.” AR 180 (referencing 50 C.F.R. § 29.2). The 1996 Guidance also distinguished
cooperative land agreements, requiring both parties to mutually and equally benefit, from special
use permits or cooperative farming agreements, requiring the Service to “provide more land than
is actually necessary to accomplish it[s] habitat management goals in order to provide an
economic incentive to the cooperator.” AR 180.

                5.      The 1996 Umatilla Refuge Cropland Management Plan.

        The Umatilla National Wildlife Refuge (“Umatilla Refuge”) was established in 1969 to
mitigate habitat loss from the construction of the John Day Lock, Dam and Reservoir (“Lake
Umatilla”). See Pub. L. No. 80-537, 62 Stat. 240, 240–41 (1948) (“[R]eal property which is
under the jurisdiction or control of a Federal agency and no longer required by such
agency . . . may . . . be transferred . . . to the Secretary of the Interior if the real property has
particular value in carrying out the national migratory bird management program.”); see also
U.S. FISH & WILDLIFE SERV., MCNARY AND UMATILLA NATIONAL WILDLIFE REFUGES:
COMPREHENSIVE CONSERVATION PLAN AND ENVIRONMENTAL ASSESSMENT 1-12 to 1-14 (2007)10
(“MCNARY & UMATILLA CCP”) (describing the history of Umatilla Refuge). The Umatilla
Refuge is considered “an important migration and wintering area for waterfowl and other birds in
the Columbia River Basin, as well as one of the few remaining areas supporting and preserving
the native shrub-steppe community.” AR 61.

       8
           The Fish & Wildlife Service Manual is published at http://www.fws.gov/policy/manuals.
       9
         Director’s Order No. 42, together with Amendments 13 to 15, are available online. See
http://www.fws.gov/policy/do.cfm. Director’s Order No. 42, together with Amendments 1 and
12, may be found at Pl. MJAR App’x 585–88.
       10
         Available at http://www.rivers.gov/documents/mcnary-ccp.pdf. The MCNARY &
UMATILLA CCP also was included as an Appendix to Plaintiff’s February 17, 2014 Motion For
Judgment On The Administrative Record. See Pl. MJAR at App’x 1–584.


                                                 9
        In 1996, the Service issued the Umatilla Cropland Management Plan (“Umatilla Plan”) to
“provide quality public visitation,” and increase the concentration of waterfowl prey for
threatened and endangered species, such as bald eagles. AR 63. The Umatilla Plan identified
several reasons why the Service should grow crops on refuge land, i.e., loss of waterfowl food
and habitat from wetlands degradation; long waterfowl hunting seasons; and a shift from
traditional crop production to vineyards, orchards, and tree lots. AR 63.

        The Umatilla Plan described three alternative production methods. Alternative 1, “Force
Account Farming,” 11 allowed Refuge staff to manage all crop production and required them to
farm 360 acres, at an estimated $429,000 in startup costs and $92,890 in annual production costs.
AR 67–68. Alternative 2, “Contract Farming,” allowed the Service to contract out the costs of
farming the same 360 acres identified in Alternative 1. The costs of Alternative 2 were
estimated to exceed Alternative 1. AR 69. Alternative 3, “Cooperative Agreement Farming,”
allowed the Service to negotiate crop development and harvesting by private farmer-cooperators,
who were responsible for all costs of production, but were required only to grow crops that could
be utilized to feed migratory birds and wildlife. AR 69–70. The cost of Alternative 3 to the
Service was minimal, but substantial land rental revenue would be lost that otherwise could be
used to pay for feed. AR 70. The Service selected Alternative 3 as the preferred production
method. AR 69. Before the Umatilla Plan was implemented, two farmers harvested 1,383 acres,
from which Umatilla Refuge wildlife received the benefit of 344 acres of crop feed. AR 69, 73.

         Pursuant to the Umatilla Plan:

         Cooperators [were to be] selected in accordance with Refuge manual guidelines
         as outline[d] in 5 RM § 17.11A and [were to be] issued [] three year Cooperative
         Farming Agreement[s,] as outlined in 6 RM § 4.8. Cooperative Farming
         Agreements [would be] amended annually to include specific crops, shares and
         any other special conditions required for the farming season.

AR 73.
                6.     The 1999 McNary Refuge Cropland Management Plan.

        The McNary National Wildlife Refuge (“McNary Refuge”) was established in 1956,
when the United States Department of the Army made the land surrounding the Lake Wallula
Reservoir available to Interior for conservation purposes and mitigation of wildlife habitat loss
caused by the construction of the McNary Lock and Dam Project. AR 44; see also MCNARY &
UMATILLA CCP 1-8 to 1-12 (describing the history of McNary Refuge). The McNary Refuge
has particular ecological importance as a nesting area for the Great Basin Canada Goose and also
serves as a wintering area for mallards and subspecies of Canada Geese. AR 44.

        In 1999, the Service issued the McNary Cropland Management Plan (the “McNary
Plan”), which was based on the Umatilla Plan. Compare AR 43–59 (McNary Plan), with AR
60–84 (Umatilla Plan). Both Plans were premised on the need to maintain a farming program,

         11
        “Force account” is defined as “[a]ny cropland management operation carried out by
government employees.” 6 RM § 4.3(C) (1985).



                                               10
because of: degraded area wetlands that did not provide sufficient food for waterfowl; an
unusually cold, late winter with an extended hunting season; and changes in area cropping
patterns, with reductions in corn crops. AR 46–47 & Tbl. 1.

       The McNary Plan, like the Umatilla Plan, considered three production methods for
growing crops. The Service estimated that Alternative 1, Force Account Farming, would utilize
300 acres at an estimated annual cost of $77,409, based on a 1992 Washington State University
study. AR 48–49. The costs for Alternative 2, Contract Farming, were estimated to exceed
those of Alternative 1. Alternative 3, Cooperative Agreement Farming, would impose minimal
costs on the Service, because a farmer-cooperator was responsible for all costs of production, but
would produce a specified amount of crops for use by the McNary Refuge as bird and wildlife
feed. AR 50. Prior to the McNary Plan, two cooperators farmed 540 acres of the McNary
Refuge; the remaining 160 acres were set aside for cropland that the Service considered to be
“economically undesirable for the existing cooperators.” AR 50.

         Under the McNary Plan, as with the Umatilla Plan:

         Cooperators [were to be] selected in accordance with Refuge manual guidelines
         as outline[d] in 5 RM § 17.11A and [were to be] issued [] three year Cooperative
         Farming Agreement[s,] as outlined in 6 RM § 4.8. Cooperative Farming
         Agreements [would be] amended annually to include specific crops, shares and
         any other special conditions required for the farming season.

AR 52.

                7.     The December 31, 2006 Amendment 14 To Director’s Order No. 42.

        The Service issued a series of amendments to Director’s Order No. 42, culminating with
the December 31, 2006 Amendment 14 extending the “termination date” of the Refuge Manual
to December 31, 2007. See Director’s Order No. 42, Amend. 14; see also Director’s Order No.
42, Amend. 13; Pl. MJAR at App’x 587–88. The December 31, 2007 deadline passed without
further amendment; so, on January 1, 2008, the Refuge Manual was “terminated.”

                8.     The 2007 Comprehensive Conservation Plan And Environmental
                       Assessment For The McNary And Umatilla Refuges.

        In May 2007, the Service, in coordination with the Mid-Columbia River National
Wildlife Refuge Complex, issued a Comprehensive Conservation Plan and Environmental
Assessment for the McNary and Umatilla Refuges (the “2007 Plan”). The 2007 Plan explained
that farming in the McNary and Umatilla Refuges “is a critical . . . operation in meeting purposes
of the Refuge (e.g. ‘particular value in carrying out the National Migratory Bird program,’ as
well as goals and objectives established in the [2007 Plan.])” MCNARY & UMATILLA CCP B-74
to B-75, C-65 to C-66.

         The 2007 Plan lists thirteen “Refuge Goals,” among which were:

         1. Manag[ing] high quality food and sanctuary to support large concentrations of
         migratory waterfowl.


                                               11
                                              * * *

       5. Provid[ing] high quality riparian habitats for the benefit of nesting and
       migrating birds . . . and other riparian wildlife.

MCNARY & UMATILLA CCP 1-20 to 1-21.

II.    RELEVANT FACTS. 12

       A.      Cooperative Farming Agreements In The McNary And Umatilla Refuges.

       The cooperative farming agreements in this case concern federal land within the McNary
and Umatilla Refuges, located along the Columbia River in southeastern Washington State and
the northeastern area of Oregon. Court Exhibits 1–3. The Service operates these Refuges as
migration and wintering areas for Canada geese, other waterfowl, and birds. These agreements
allow a farmer-cooperator to use or sell 75 percent of the crop yield on a per-acre basis; the
remaining 25 percent is considered as refuge shares, i.e., crops used to feed migratory birds and
other wildlife. The cooperative farming agreements require the farmer-cooperators to be
responsible for all production costs, except the maintenance of underground irrigation systems
and pumps.

       B.      The 2013 Farming Season.

        On June 5, 2012, Mr. Hymas contacted the McNary Refuge Manager to express an
interest in three fields for the 2013 farming season. AR 86, 105, 114. In mid-June 2012, the
Refuge Manager informed Mr. Hymas that the Service planned to put Field 4 and the Library
Field up for bid, but Field 3, in which Mr. Hymas expressed an interest, was subject to an
existing cooperative farming agreement. 13 AR 86–87, 105; see also Court Exhibit 4. Mr.
Hymas was advised, however, that the Service would “begin the process for selecting a new
cooperator [for the Library Field and Field 4] in the near future,” after obtaining estimates to
repair the irrigation systems. 14 AR 86, 106–07. Over the next few months, Mr. Hymas made

       12
       The relevant facts discussed herein were derived primarily from the February 5, 2014
Amended Complaint and the Administrative Record (AR 1–220).
       13
          Mr. Hymas believed all three fields were fallow and eligible for public bid. AR 114
(4/5/12 Protest Statement) (“I . . . presented my idea to Mr. Glass to farm the three areas in
question that I notice[d] for some years [] were not farmed or maintain[ed] but had been left to
go fallow in weeds. . . . Area A [Field 3a], I was told was already with an agreement but that the
operator has not been farming it, no explanation was given for the non-performance.”).
       14
          In the past, because the Service found it difficult to find a farmer-cooperator willing to
use the old, labor-intensive wheel line irrigation on Field 4 (83 acres) and the solid set irrigation
on the Library Field (20 acres), both fields in McNary Refuge lay fallow after 2008. AR 85; see
also Court Exhibit 4. In 2011, as part of a land exchange with the Washington State Department
of Transportation, the Service installed equipment at the Library Field to improve irrigation. AR
85.



                                                 12
numerous inquiries about how the cooperative farming program worked. AR 86, 114. In
December 2012, Mr. Hymas advised the Service that he was willing to pay for the cost of the
required irrigation equipment for Field 4; the Refuge Manager responded that he still was
waiting for an estimate. AR 86, 114–15.

         In February 2013, the Refuge Manager advised Mr. Hymas that preliminary estimates
were obtained to repair the irrigation system in the Library Field, but that the Service was still
waiting for an estimate to repair the irrigation system in Field 4. AR 86. Mr. Hymas continued
to express an interest in paying for the necessary irrigation equipment and undertaking the
responsibilities of a farmer-cooperator “as the [2013] growing season neared.” AR 86. During
the first week of March 2013, the Refuge Manager obtained a second cost estimate for the
irrigation system for Field 4 and reviewed the Umatilla and McNary Cooperative Farming
Programs, particularly with respect to Field 3. AR 87.

       Thereafter, Mr. Blasdel, an incumbent cooperator who farmed 183 acres in the McNary
Refuge, offered to pay for the necessary irrigation improvements to Field 3a, and “[b]ecause [he
was] a former cooperator, [the Service decided] to offer [a] 2013 Cooperative Farming
Agreement to him[.]” AR 86–87. On March 14, 2013, the Refuge Manager met with Mr.
Blasdel and he also agreed to farm the Library Field under an existing cooperative farming
agreement. AR 88. The next day, Mr. Hymas was informed by the Service that “there would be
no available [cooperative farming agreements] for him to participate in.” AR 88.

       On March 17, 2013, Mr. Hymas responded:

       As I am sure you can guess, I was disappointed in the information you gave me
       wherein you stated that you had a meeting in which it was determined not to lease
       any of the Refuge’s farm land that we had under discussion. I must admit I do not
       understand how that determination could be made at this point in time when we
       have been working together since June . . . to facilitate a bid proposal for the land.

                                              * * *

       [O]n Feb. 22nd you [told] me to expect something in the Tri-City Herald on the
       25th since you were expecting that day the price quote from Irrigation Specialists
       regarding the pump motor. How did you go from being that close to being now
       so far away? I would kindly ask for an explanation of what happened on the 22nd
       and 25th of February to bring us to where we are now.

                                              * * *

       A reason you gave is that now it is determined that the fowl will have enough
       food, again I would request to know what has changed recently to establish that
       there will be sufficient food this coming winter. Have there been other bids that
       have recently concluded that I am not aware of to greatly increase the production?
       Was a study recently completed? If so can I get a copy?

AR 104.



                                                13
        On March 22, 2013, the Refuge Manager replied that the Service rejected Mr. Hymas’s
offer, because the “[w]ildlife food resource needs could adequately be met through the Refuge
share under the existing Cooperative Farming Agreements.” AR 106. Mr. Hymas also was
advised that the Service decided that, because of its small size, the Library Field “should be
joined with the other adjoining cooperatively farmed field to allow the Refuge maximum
flexibility in placement of food resources at desired locations.” AR 107. On March 29, 2013,
Mr. Hymas met with the Refuge Manager for a debriefing. AR 94.

       On April 3, 2013, Mr. Hymas renewed his request “to be included in any of the 8
contracts that will be given this year” and receive information about the cooperator agreements
that were awarded to Mr. Blasdel. AR 94. In the following days, the Service issued cooperative
farming agreements for 2013, as described below.

         On April 4, 2013, the Service finalized a one-year agreement with Doug Strebin to farm
the 31-acre Wallula Field in the McNary Refuge, because he “control[led] the only method of
irrigating this circle [(the 1/4 irrigation circle that comprises Wallula Field 1)].” AR 1–5, AR 90.
On April 5, 2013, the Service advised Mr. Hymas that he should expect a letter from the
Service’s Mid-Columbia River National Wildlife Refuge Complex, about participation in the
current cooperative farming agreements. AR 94; see also AR 93.

       On April 7, 2013, Mr. Hymas requested that the Service provide him with “the current
Cropland Management Plan(s) for the 8 cont[r]acts in question,” as well as “feed requirement
data.” AR 98. On April 8, 2013, Mr. Hymas asked for “the latest executed contracts” (not the
unsigned “anticipated ones for the future”), and repeated his request “to bid on each of these
proposed contracts.” AR 96.

       On April 12, 2013, the Service finalized a one-year agreement with an incumbent
cooperator, Vern Frederickson, to cultivate five fields, comprising 597 acres, in the Umatilla
Refuge. AR 6–10, 91. On that same date, the Service also finalized a one-year agreement with
Jody Maddox, another incumbent cooperator, to farm six fields, comprising 685 acres, in the
Umatilla Refuge. AR 11–15, 91–92.

        On April 15, 2013, the Service notified Mr. Hymas that “[w]e are not soliciting bids for
the cooperative farming program on the Complex for this year.” AR 93, 96. The Service also
informed Mr. Hymas that it would not entertain new bidders, unless there was a problem with
existing cooperators. AR 93 (“Open bids for cooperative farming on the Refuges are sought
when new lands are brought into the farming program or if existing farmlands become available
due to the loss of a cooperator. Once initially established, we generally continue to utilize
existing cooperators for those lands unless there is a problem with their performance.”).

        On April 16, 2013, Mr. Hymas again renewed his request for “the last effective contracts
(agreements) for the 8 farm contracts.” AR 97. On that date, however, the Service finalized a
one-year agreement with John Peterson, also an incumbent cooperator, to farm five fields,
comprising 275 acres, in the McNary Refuge. AR 16–20, 90–91. In addition, the Service also
finalized a four-year agreement with Larry Pierce, an incumbent cooperator and prior landowner,
to farm one 42-acre field in the McNary Refuge. AR 21–25, 89.




                                                14
        On April 18, 2013, Mr. Hymas sent a pro se email protest to the Service objecting to the
use of non-competitive cooperative farming agreements, as fraudulent, “per 48 Code of Federal
Regulations 33.103.” AR 99–102. Attached to the April 18, 2013 email was a “Protest
Statement,” providing a timeline of Mr. Hymas’s interactions with the Service. AR 114–19; see
also AR 115–16 (“[T]he [Service has] behav[ed] badly, untruthfully and with deception to
continue a historical pattern of non-comp[eti]tive agreements against law (see Competition in
Contract[ing] Act, 41 U.S.C. § 253 [now 41 U.S.C. § 3301] and Federal Acquisition Regulations,
FAR) and department regulations (see 5 RM [§] 17 and 6 RM [§] 4) as well as giving, at a
minimum, a gross appearance of impropriety and corruption.”); AR 116 (“Mr.
Stenvall . . . admitted to . . . unilaterally fixing the prices of the non-cooperative bid farming
cont[r]acts at 25% share-crop rather than [using] the regulatory required bidding process[.]”).
The “Protest Statement” also restated that Mr. Hymas was willing to farm the 160 acres that have
labor-intensive wheel lines, although the Service found that land to be “economically undesirable
for the existing cooperators.” AR 117 (“Just because some farmers would turn their nose up at
using a lowly manual method for irrigation does not mean that another would not, as in [my]
case[.]”). 15

       On April 19, 2013, Mr. Hymas filed another protest with the Service. AR 88. On April
23, 2013, the Service denied that protest. AR 88.

        On April 26, 2013, the Service finalized a three-year agreement with Mr. Blasdel to farm
eight fields, totaling 238.6 acres, in the McNary Refuge. AR 26–30, 41–42, 88. 16 Each of the
cooperative farming agreements issued for the 2013 season granted the farmer-cooperator the
“privileges of using lands of the National Wildlife Refuge System . . . for the cultivation,
production, and/or harvesting of agricultural crops, on a share basis[.]” AR 1 (4/4/13 Strebin
Cooperative Farming Agreement); see also AR 1–2 (listing special conditions in the Cooperative
Farming Agreement). In addition, each agreement included a Revocation Policy that allowed the
Service, at its discretion, to revoke an agreement and “take possession of the premises for [the
Service’s] own and sole use provided that the Service shall make available to the Cooperator his
rightful share of growing crops.” AR 3 (Cooperative Farming Agreement General Conditions
section F) (emphasis in original).




       15
           On April 18, 2013, Mr. Hymas’s “Protest Statement” was forwarded to the Assistant
Regional Director for Refuges in the Pacific Region, with the Project Leader’s explanation that
he “sat down with [Mr. Hymas for about 1 1/2 [hours] and [Mr. Hymas] feels because he came in
10 months ago to talk to [the Refuge Manager] about some farm fields that were fallowed that he
is entitled to bid on them.” AR 110.
       16
           The Blasdel cooperative farming agreement utilized an 83 percent cooperator/17
percent Refuge split; the other agreements used a 75/25 percent split. Compare AR 1 (Strebin
cooperative farming agreement, identifying 23.25 acres as the cooperator’s share and 7.75 acres
as the Service’s share), with AR 41 (Blasdel cooperative farming agreement, identifying 198.6
acres as the farmer-cooperator’s share and 40 acres as the Service’s share).



                                               15
III.   RELEVANT PROCEDURAL HISTORY.

        On April 25, 2013, Mr. Hymas filed a pro se Complaint in the United States Court of
Federal Claims, alleging that the Service’s non-competitive process in awarding cooperative
farming agreements in the McNary and Umatilla Refuges was contrary to law, not rational, and
arbitrary and capricious. Compl. ¶ 1. The same day, Mr. Hymas filed an Application For
Temporary Restraining Order and a Motion For Preliminary And Permanent Injunctions to
enjoin the Service from proceeding with the 2013 cooperative farming agreements.

        The day after the Complaint was filed, the Service began to create a post-hoc record to
justify the award of the April 2013 Cooperative Agreements, without competition. First, in an
April 26, 2013 email, the Service’s Project Leader described a past conversation with the Deputy
Chief of Refuges, about Mr. Hymas’s protest:

       [The Deputy Chief of Refuges] did not see how Jay Hymas had any standing as
       we had not put out a public offering, Jay is not under some sort of existing
       agreement that we altered, and our charge is to provide for the wildlife resources
       we are entrusted to manage within existing policy and regulations, not to provide
       a livelihood for someone who wishes to work with or for the refuge in some sort
       of capacity. Furthermore this wasn’t a procurement and therefore procurement
       guidelines are not applicable to this situation.

AR 109 (emphases added).

         Next, an April 29, 2013 “Selection of the cooperator for McNary National Wildlife
Refuge fields” was created to explain the Service’s decision to select one or more cooperators for
the 2013 farming season for the McNary Refuge Fields 3 a–d, 7 a–c, 4, and the Library Field
(“4/29/13 Stenvall Statement”). AR 85–88; see also Court Exhibit 4. This Statement was
prepared “to facilitate judicial review, given that no other document in existence shows the
agency’s decision making process.” AR 85 (emphasis added). According to the April 29, 2013
Statement, Mr. Blasdel, an existing farmer-cooperator with “over a decade of experience
working with McNary [Refuge] as a cooperator,” proposed, in February 2013, to improve the
irrigation systems on Fields 3a and 3b that he previously farmed. AR 86. Mr. Blasdel was
awarded a cooperative farming agreement, according to the Statement, because “Mr. Blasdel . . .
has [a] proven . . . capability to provide a successful farm season . . . [and] [he] owns the
irrigation pivots used on Fields 7 a–c and the wheel-line systems on Field 3b.” AR 86. The
April 29, 2013 Statement further explained that allowing a farmer-cooperator to operate only the
Library Field would limit the Service’s ability to provide adequate wildlife food supply during
the critical hunting season. AR 87 (“If the Library Field were included as part of a larger
[cooperative farming agreement with a single cooperator], this would give the Refuge the
opportunity to move its share from fields in areas open to hunting to areas closed to hunting[.]”).
And, if a single farmer-cooperator worked only the Library Field, the Service would have to
allow the farmer to take 75 percent of the crop under the cooperative farming agreement, leaving
only five acres out of twenty for wildlife needs. AR 87 (“This flexibility would be impossible if
the Library [F]ield was farmed under a separate [cooperative farming agreement] by Mr.
Hymas.”).



                                                16
         On April 29, 2013, the Refuge Manager prepared another post-award document to justify
the Service’s process for the 2013 season for the McNary Refuge Fields 5, 6 a–c, 8; Wallula
Field 1; and Pierce Field; as well as the Umatilla Refuge McCormack Fields 1–5 and Whitcomb
Fields 1–6. AR 89 (“4/29/13 Glass Statement”). This Statement also was prepared “to facilitate
judicial review, given that no other document in existence shows the agency’s decision making
process” and provide the reasons why each farmer-cooperator was accepted. AR 89. Therein,
the Service explained that Mr. Larry Pierce was selected to farm McNary Refuge’s Pierce Field,
since he was a prior landowner and therefore “eligible under the ‘priority system[,]’ described in
the Refuge Manual.” AR 89 (citing 5 RM § 17.11 (A)(c)(2) (1986) (“Priority is given to
applicants who owned the refuge lands at the time the land was acquired by the Federal
[G]overnment.”)). Mr. Hymas was not selected, “because he does not have the experience of
farming this specific field nor does he possess the preference status of a prior landowner.” AR
89. In addition, Mr. Doug Strebin was selected to farm McNary Refuge’s Wallula Field 1 for the
2013 season, because he had a lease with Broetje Orchards to farm the other three-quarters and
access to irrigation. AR 90; see also Court Exhibit 5. Mr. Hymas was not selected, “because
without irrigation capability no agreement with him could provide the wildlife food resources
that Mr. Strebin will supply.” AR 90. Mr. John Peterson also was selected to farm McNary
Refuge Fields 5, 6 a–c, and 8, for the 2013 season, because he had been a farmer-cooperator for
the McNary Refuge for more than a decade. AR 90 (citing 5 RM 17.11 A.(c).1 (1986)); see also
id. at 16–20; Court Exhibit 6. In addition, he made a multi-year investment in the center-pivot
irrigation system that he owns and uses at Fields 5 and 8. AR 90. Mr. Hymas was rejected,
“because with any new cooperator there is a risk that they will not have the experience or
capability to conduct farming operations in accordance with Refuge requirements.” AR 90. The
4/29/13 Glass Statement further explained that in 1969, the Army Corps acquired the
McCormack Fields via eminent domain from the Frederickson family, who continued to farm the
land as cooperators. AR 91. As a prior landowner and incumbent farmer-cooperator, the Service
afforded Mr. Vern Frederickson a preference to farm Umatilla Refuge McCormack Fields 1–5
for the 2013 season. AR 91 (citing 5 RM § 17.11(A)(c)(1) and (2)); see also id. at 6–10
(cooperative farming agreement); Court Exhibit 7. Mr. Hymas was rejected, “because with any
new cooperator there is a risk that they will not have the experience or capability to conduct
farming operations in accordance with Refuge requirements.” AR 91. Finally, the 4/29/13 Glass
Statement explained that Mr. Jody Maddox was selected to farm Umatilla Refuge Whitcomb
Fields 1–6 for the 2013 season. AR 91; see also id. at 11–16 (cooperative farming agreement);
Court Exhibit 8. Mr. Maddox had participated as a farmer-cooperator for more than a decade,
giving him preference. AR 91–92 (citing 5 RM 17.11(A)(c)(1)). In addition, Mr. Maddox
invested in a center pivot irrigation system used on the Whitcomb Fields. AR 91–92. Mr.
Hymas was rejected, “because with any new cooperator there is a risk that they will not have the
experience or capability to conduct farming operations in accordance with Refuge requirements.”
AR 92.

       On May 1, 2013, the Government filed the Administrative Record (AR 1–189).

        On May 6, 2013, the Government filed a Motion To Dismiss, Or, In The Alternative,
Motion For Judgment Upon The Administrative Record. On May 13, 2013, Plaintiff filed a
Response. On May 13, 2013, the Government filed a Reply. On May 20, 2013, Plaintiff filed a
First Supplemental Memorandum In Support Of Plaintiff’s Motion To Grant Jurisdiction.



                                               17
        In a June 18, 2013 status conference, the court indicated that issuing injunctive relief in
the middle of the farming season would not be in the public interest. In a June 24, 2013 status
conference, the court advised the parties that the case would be stayed, if the Government agreed
to notify Mr. Hymas when he could submit a bid to participate in the 2014 farming season. On
July 22, 2013, the court issued an Order denying Plaintiff’s motion for an injunction as to the
2013 cooperative farming cycle and stayed the case until the 2014 selection process could take
place.

                                             * * *

       On November 18 and 21, 2013, the Service requested that each incumbent farmer-
cooperator indicate by December 5, 2013, if they wished to continue to participate in the
program for the 2014 season and were “interested in increasing the acreage that [they] currently
farm under a cooperative farming agreement.” AR 194–97. All of the existing farmer-
cooperators expressed an interest in participating in the 2014 season. AR 206−08, 211.

        On November 21, 2013, the Service also sent a questionnaire to Mr. Hymas, requesting
that he provide information by December 4, 2013, so that the Service could consider whether he
still was interested in participating in the McNary and Umatilla Refuge Cooperative Farming
Programs for 2014. AR 198. The questions focused mainly on his prior farming experience.
AR 198.

      On November 21, 2013, the Project Leader also issued a document entitled “Cooperative
Farming Selection Process” (“11/21/13 Stenvall Statement”) to explain that

       the only criterion for selecting cooperators in this program is their capability to
       perform the requirements of the cooperative farming agreement. Considerations
       relevant to the capability to perform—such as experience participating in the
       cooperative farming program (previous cooperators), experience with using the
       parcel of land to be farmed (former landowners and former tenants), and
       experience with using the land in the local vicinity (resident neighbors and non-
       resident neighbors)—are encompassed in the priority system outlined in 5
       RM § 17.11(A)(1)(c).

AR 190.

         The 11/21/13 Stenvall Statement also justified the Service’s rejection of formal and
informal bidding, because of a concern that a bidder “may be unable to complete the project (due
to illness, bankruptcy, or lack of necessary equipment or skill).” AR 190. It also rejected the use
of a lottery or first-come, first-served selection process:

       [There is a] risk [that] the Refuge [will] not receiv[e] an appropriate share of
       crops if a new cooperator is incapable of farming to Refuge standards or
       unwilling to work within the substantial restrictions that we place on cooperative
       farmers. Any new cooperator brings the risk of the unknown to the farming
       program, both in the ability of the farmer and their knowledge of the area. In the
       experience of some refuge managers at the Mid-Columbia River National



                                                18
       Wildlife Refuge Complex, there is a significant risk of new cooperators failing
       due to lack of knowledge, skill, equipment, or understanding of refuge goals and
       constraints.

AR 191.

        The Service considered the priority system to be successful, because farmer-cooperators
had a stake in the success of the program as a result of multi-year crop agreements and
“economic investment in irrigation infrastructure.” AR 191. On December 4, 2013, Mr. Hymas
responded that although he was not an incumbent farmer-cooperator, former landowner, or
tenant, he was a neighbor of the Refuges who had farmed in the Columbia Basin for over 50
years. AR 209–10.

        On January 17, 2014, the Project Leader issued another Statement (“1/17/14 Stenvall
Statement”) to describe the selection process for the 2014 farming season. AR 212–14. Of the
six farmer-cooperators who participated in the 2013 cooperative farming program, two were
identified as having multi-year agreements, and therefore the Service did not need to consider
them in 2014. AR 212. Four other incumbent farmer-cooperators expressed an interest in
continuing to farm their respective fields in 2014. AR 212–13.

        On January 21, 2014, the Service notified the incumbent farmer-cooperators that they
were selected to participate in the 2014 program. AR 213, 216−19. Again, Mr. Hymas was not
selected. AR 220.

        On January 24, 2014, the court was informed that the Service completed all cooperative
farming agreements for the 2014 farming cycle, but did not select Mr. Hymas, so the court lifted
the stay. On January 27, 2014, the Government filed an addendum to the Administrative Record
(AR 190–220).

       On February 5, 2014, Plaintiff filed an Amended Complaint, alleging that the Service’s
use of a non-competitive bidding process for the cooperative farming agreements violated the
CICA, 41 U.S.C. § 253(a) (now § 3301(a)) (Count I); the FGCAA, 31 U.S.C. §§ 6303 and 6305
(Count II); and was arbitrary, capricious, an abuse of discretion, and contrary to law (Count III).
Am. Compl. ¶¶ 65–78. The Amended Complaint also requested that the court (1) enjoin the
Service from awarding cooperative farming contracts for the McNary and Umatilla National
Wildlife Refuges in the future based on the priority system and (2) declare that the 2013 and
2014 cooperative farming agreement procurement process was unlawful. Am. Compl. ¶¶ 1–7.

        On February 17, 2014, Plaintiff filed a Motion For Judgment On The Administrative
Record (“Pl. MJAR”), with an Appendix. On March 7, 2014, the Government filed a Motion To
Dismiss, Cross-Motion For Judgment Upon The Administrative Record And Response To
Plaintiff’s February 17, 2014 MJAR (“Gov’t Mot.”), together with the Declaration of Lamont
Glass, Refuge Manager. On March 14, 2014, Plaintiff filed a Response to the March 7, 2014
Motion To Dismiss And Reply To The February 17, 2014 MJAR (“Pl. Resp.”). On March 24,
2014, the Government filed a Reply (“Gov’t Reply”).




                                                19
      On February 26, 2014, the Service issued Amendment 15 that retroactively reinstated the
Refuge Manual, as of December 31, 2007:

       1. This supersedes Amendment 14 of Director’s Order No. 42 (March 25, 1992).

                                             * * *

       3. Section 5 is amended to extend the termination of the date [sic] indefinitely.

       4. This amendment shall be effective as of December 31, 2007.

       5. This amendment clarifies that the listed directives were not revoked on
       December 31, 2007; the listed directives are not revoked unless and until they
       become superseded by newer policy. The development of the Fish and Wildlife
       Service Manual is ongoing and many of the listed directives, including 6 RM 4.8
       and 5 RM 17.11, remain in effect.

Director’s Order No. 42, Amend. 15 (Feb. 26, 2014).

       On June 23, 2014, the Government filed, at the court’s request, a Notice that included the
cooperative farming agreements with farmer-cooperators Frederickson, Maddox, Peterson, and
Strebin. None of these cooperative farming agreements were included in the Administrative
Record submitted and amended by the Government. Each agreement was executed in March
2014 and had a five-year term.

       On July 24, 2014, the Government filed a Notice that explained the circumstances
regarding the Government’s failure to file the aforementioned farming agreements until June 23,
2014.

IV.    DISCUSSION.

       A.      The Government’s Motion To Dismiss.

               1.     The Government’s Argument.

        The Government makes five principal arguments as to why the United States Court of
Federal Claims does not have jurisdiction under 28 U.S.C. § 1491(b)(1) of the Tucker Act to
review the Service’s “use of cooperative agreements to promote wildlife conservation[.]” Gov’t
Mot. 14. First, the cooperative farming agreements are not “procurements,” as that term is
defined by the United States Court of Appeals for the Federal Circuit. Gov’t Mot. 14 (citing
Distributed Solutions, Inc. v. United States, 539 F.3d 1340, 1345–46 (Fed. Cir. 2008) (applying
the definition of “procurement” as “acquiring property or services” found in 41 U.S.C. § 111
[formerly § 403] to 28 U.S.C. § 1491(b)(1)); see also Res. Conservation Grp., LLC v. United
States, 597 F.3d 1238, 1245 (Fed. Cir. 2010) (“[Section] 1491(b)(1) in its entirety is exclusively
concerned with procurement solicitations and contracts.”)).

       Second, the Government asserts that the FGCAA does not govern the cooperative
farming agreements at issue, because 16 U.S.C. § 742(f) precludes application of the FGCAA to


                                                20
the cooperative farming agreements at issue. Gov’t Mot. 16 (quoting 16 U.S.C. § 742f(d)(2)(A)
(allowing the Service, “[n]otwithstanding [the FGCAA], . . . [to] enter into a cooperative
agreement with a partner organization, academic institution, State or local government
agency”)). Nevertheless, the Government views the FGCAA as a limitation on the court’s
jurisdiction, because the terms “procurement” in the Tucker Act and “procurement contract,” as
used in the FGCAA, are “co-extensive” for purposes of jurisdiction. Gov’t Reply 2.

       The FGCAA provides:

       An executive agency shall use a procurement contract . . . when—

               (1) the principal purpose of the instrument is to acquire (by purchase,
               lease, or barter) property or services for the direct benefit or use of the
               United States Government; or

               (2) the agency decides in a specific instance that the use of a procurement
               contract is appropriate.

31 U.S.C. § 6303 (emphasis added).

       An executive agency shall use a cooperative agreement . . . when—

               (1) the principal purpose of the relationship is to transfer a thing of value
               to the State, local government, or other recipient to carry out a public
               purpose of support or stimulation authorized by a law of the United States
               instead of acquiring (by purchase, lease, or barter) property or services for
               the direct benefit or use of the United States Government; and

               (2) substantial involvement is expected between the executive agency and
               the State, local government, or other recipient when carrying out the
               activity contemplated in the agreement.

31 U.S.C. § 6305.

        The United States Court of Federal Claims has jurisdiction over procurement contracts,
but not cooperative agreements. Gov’t Mot. 14–15 (citing 31 U.S.C. §§ 6303, 6305); see also id.
(differentiating “procurements” from “cooperative agreements, which . . . have an entirely
different status under Federal law”); see also CMS Contract Mgmt. Servs., Inc. v. United States,
110 Fed. Cl. 537, 552 (2013) (determining that “in light of the standards set forth in the
FGCAA,” the agreements at issue “are best classified as cooperative agreements rather than
procurement contracts”). 17



       17
          The Government notes that the court in that case “reach[ed] the correct conclusion,”
but erroneously “characterized its decision in terms of the merits rather than in terms of subject
matter jurisdiction.” Gov’t Mot. 16 n.6. After briefing in this case concluded, however, the
United States Court of Appeals for the Federal Circuit reversed the trial court in CMS Contract


                                                21
        The Government describes the Service’s cooperative farming agreements as “classic
examples of cooperative agreements,” because they “‘carry out a public purpose of support’ for
wildlife conservation:” their “‘principal purpose’” is not to “‘acquir[e] [farming] services for the
direct benefit [of] or use’” by the Service. Gov’t Mot. 17 (quoting 31 U.S.C. §§ 6303, 6305).
Instead, “migratory birds and wildlife plainly are the direct beneficiaries of these cooperative
farming services,” and the cooperative farming agreements have the principal purpose of
transferring “a thing of value” to those intended recipients. Gov’t Mot. 16–18 (quoting 31
U.S.C. § 6305).

        Third, the National Wildlife Refuge System Improvement Act, one of the Service’s
governing statutes, specifically authorizes the Service to “enter into a cooperative agreement” to
conduct refuge projects. See 16 U.S.C. § 742f(d)(2)(A). The Government adds that 50
C.F.R. § 29.2 also allows the Service to enter into “[c]ooperative agreements with persons for
crop cultivation . . . on wildlife refuge areas,” as further evidence that the court does not have
jurisdiction to adjudicate the claims alleged in the Amended Complaint. Gov’t Mot. 17.
Therefore, the court must respect this explicit congressional choice to allow “the [Service] to use
‘cooperative agreements,’ rather than procurement contracts, to promote wildlife conservation.”
Gov’t Mot. 17.

        Fourth, the Government criticizes Plaintiff’s reliance on 360Training.com, Inc. v. United
States, 104 Fed. Cl. 575 (2012), where the court exercised jurisdiction to determine whether an
agency properly used a third party to provide a required service. Gov’t Reply 3. The
Government asserts that the analysis in 360Training.com is flawed, because the “fact that the
agency [in 360Training.com] entered into cooperative agreements to pursue the mission of the
agency does not lead to the conclusion that the agency was conducting a procurement; otherwise,
all cooperative agreements would be procurement contracts[.]” Gov’t Reply 3. Thus, whether or
not the Service’s governing statutes reflect a “statutory mandate” is irrelevant to the question of
whether the United States Court of Federal Claims has jurisdiction to adjudicate the claims
alleged in the February 5, 2014 Amended Complaint. Gov’t Reply. 3.

        In the alternative, assuming that 360Training.com is correctly decided, the Government
rejects Plaintiff’s argument that the cooperative farming agreements reflect a “statutory
mandate,” which, if true, would indicate the agreements at issue are “procurement contracts”
over which the United States Court of Federal Claims may exercise jurisdiction. Gov’t Mot. 18
(citing Pl. MJAR 9 (“[W]here an agency has a statutory mandate to provide a service, and the
agency decides to use a cooperative agreement to obtain the provision of that service, that agency
has engaged in a procurement process . . . and the [United States Court of Federal Claims] has
jurisdiction[.]” (quoting 360Training.com, 104 Fed. Cl. at 577–78))). In this case, it is true that
the Service is required to “provide for the conservation of . . . wildlife,” but the Service has
discretion to choose how best to fulfill that statutory obligation. Gov’t Mot. 18 (quoting 16
U.S.C. § 668dd(a)(4)). For this reason, the 2007 Comprehensive Conservation Plan for the
McNary and Umatilla Refuges recognized that the purpose of the Refuges was “compatible with
cooperative agreement farming,” but the Plan did not mention any “statutory mandate,” requiring

Mgmt. Servs., and held that the disputed contracts were procurement contracts.           See CMS
Contract Mgmt. Servs. v. United States, 745 F.3d 1379, 1386 (Fed. Cir. 2014).



                                                22
the Service to engage in force-account farming (farming by agency personnel), as suggested by
the Amended Complaint. Gov’t Mot. 19 (emphases in original); see also id. (rejecting Plaintiff’s
argument that 16 U.S.C. § 668dd(e)(1)(E), requiring that Interior “shall manage [wildlife
refuges] . . . in a manner consistent with [a comprehensive conservation] plan,” reflects a
statutory mandate).

        Finally, the February 5, 2014 Amended Complaint challenges four 2013 cooperative
farming agreements that expired on or about March 1, 2014. Gov’t Mot. 20 (citing AR 1, 6, 11,
16; Am. Compl. at 12). But, these claims now are moot. Gov’t Mot. 21 (citing Rice Servs.
Ltd. v. United States, 405 F.3d 1017, 1020 n.3 (Fed. Cir. 2005) (“A case is moot when the issues
presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.”
(internal quotations omitted))). Therefore, the court may not issue a declaratory judgment that
“would have no practical effect on the parties,” and “be tantamount to issuing an advisory
opinion.” Gov’t Mot. 21 (quoting Labat-Anderson, Inc. v. United States, 65 Fed. Cl. 570, 576
(2005)). “Notwithstanding the existence of an ongoing controversy regarding the multi-year
2013 [] and the 2014 [cooperative farming agreements], there no longer is a live controversy
regarding the expired 2013 [cooperative farming agreements].” Gov’t Mot. 21. Therefore, the
Government insists this is not a case where potentially unlawful action is “capable of repetition,
yet might again evade review.” Gov’t Reply 4–5 (quoting Pl. Resp. 6–7).

               2.      Plaintiff’s Response.

       Plaintiff responds that the cooperative farming agreements in this case were entered into
“in connection with a procurement or a proposed procurement,” because the Service is
“acquiring property or [farming and maintenance] services” from the farmer-cooperators to feed
“migratory waterfowl and other species[.]” Pl. Resp. 3–4.

        Next, Plaintiff explains that the Government “conflates the jurisdictional question of
whether [the Service] engaged in a procurement, within the meaning of the Tucker Act, 28
U.S.C. § 1491, with a merits question of whether [the Service] selected the proper legal
instrument (i.e., procurement contract, grant, or cooperative agreement) under the FGCAA.” Pl.
Resp. 2–3. For purposes of bid protest jurisdiction, the United States Court of Appeals for the
Federal Circuit has defined “procurement” broadly: “all stages of the process of acquiring
property or services, beginning with the process for determining a need for property or services
and ending with a contract completion and closeout.” Pl. Resp. 3 (quoting Res. Conservation
Grp., 597 F.3d at 1244 (internal quotations omitted)). For this reason, the United States Court of
Federal Claims has “rejected the [G]overnment’s invitation to adopt the FGCAA’s narrower
definition of ‘procurement contract’ for purposes of determining whether jurisdiction exists
under the Tucker Act.” Pl. Resp. 3 (citing 360Training.com, 104 Fed. Cl. at 577 (“The [c]ourt
finds that the definition [of procurement] set forth by the Federal Circuit is clear and it declines
to adopt the extraneous limitations suggested by the Government.”)). Consequently, the
Government’s reliance on the FGCAA’s definition of “procurement contract” as a basis to limit
the court’s jurisdiction is misplaced. Pl. Resp. 5, 8. But, even viewing the cooperative farming
agreements through the lens of the FGCAA leads to the same conclusion: they are procurement
contracts, not cooperative agreements. Pl. MJAR 13–14 (citing 16 U.S.C. §§ 6303, 6305). The
purpose of the “cooperative farming agreements” is to obtain farming services, maintenance
services, and irrigation equipment for the benefit of wildlife. These activities constitute a


                                                23
procurement, i.e., “to acquire (by purchase, lease, or barter) property or services.” Pl. MJAR 13–
14 (quoting 31 U.S.C. § 6303). In this case, the cooperative farming agreements are not intended
to support or provide assistance to farmers, which, if true, would require the use of cooperative
agreements under the FGCAA. Pl. MJAR 14 (citing 31 U.S.C. § 6305; 360Training.com, 104
Fed. Cl. at 580 (“[A] key inquiry [into the procurement/cooperative agreement distinction] is
whether the agency’s focus is on providing a service to the ultimate beneficiaries [i.e., a
procurement] or on assisting the intermediaries in providing a service [i.e., a cooperative
agreement].”)).

         The National Wildlife Refuge System Administration Act of 1966 requires that the
Service manage the Refuges “for the conservation, management, and where appropriate,
restoration of the fish, wildlife, and plant resources and their habitats . . . for the benefit of
present and future generations of Americans.” Pl. Resp. 4 (quoting 16 U.S.C. § 668dd(a)(2)).
That Act repeatedly uses the word “shall” to emphasize that the Service’s primary responsibility
is to conserve wildlife and wildlife habitat within the refuges. Pl. Resp. 4 (quoting 16
U.S.C. § 668dd(a)(3)(A) (“[E]ach refuge shall be managed to fulfill the mission of the [National
Wildlife Refuge] System[.]”); see also id. § 668dd(a)(4)(A) (“[T]he Secretary shall . . . provide
for the conservation of . . . wildlife . . . and their habitats within the [National Wildlife Refuge]
System[.]”)). To implement this mandate, the Service is required to administer each refuge,
pursuant to a Comprehensive Conservation Plan.                          Pl. Resp. 4 (citing 16
U.S.C. § 668dd(e)(1)(E)). The McNary and Umatilla Refuge Plans require the Service to
provide feed for migratory waterfowl. Pl. Resp. 4 (citing MCNARY & UMATILLA CCP B-74 to
B-75; C-65 to C-66). Through use of cooperative farming agreements, the Service elected to use
farmer-cooperators, instead of Service staff, to accomplish this mandate. Pl. Resp. 4 (citing AR
43–84 (identifying three options for crop production within the Refuges)). The Service’s
mandate to provide crop feed is accomplished by procuring these services through a contractual
instrument, and is part of “the process of acquiring property or services” for purposes of bid
protest jurisdiction. Pl. Resp. 5. Therefore, “where an agency has a statutory mandate to provide
a service, and the agency decides to use a cooperative agreement to obtain the provision of that
service, that agency has engaged in a procurement process under the Tucker Act[.]” Pl. Resp. 4–
5 (quoting 360Training.com, 104 Fed. Cl. at 577−78); see also id. (arguing that obtaining
migratory bird and wildlife feed services to grow crops by relying on private farmers necessarily
entails the “need for property or services” (quoting 360Training.com, 104 Fed. Cl. at 582)).

       As to the Government’s argument that Plaintiff’s challenge to four 2013 cooperative
farming agreements is moot, the Service has evidenced by its prior conduct that unlawful use of
the priority system “is capable of repetition, yet might again evade review.” Pl. Resp. 6–7
(quoting Cal. Indus. Facilities Res., Inc. v. United States, 100 Fed. Cl. 404, 409 (2011); see also
Valley Constr. Co. v. Marsh, 714 F.2d 26, 28 (5th Cir. 1983) (applying the mootness exception
to United States Army Corps of Engineers’ minority set-aside contracts)). In addition, as the
Administrative Record reflects, the Service clearly intends to continue the practice of providing
preferences to incumbent farmer-cooperators to avoid competition. Pl. Resp. 7.




                                                 24
               3.     The Court’s Resolution.

                      a.      Subject Matter Jurisdiction.

        The United States Court of Federal Claims has jurisdiction to adjudicate bid protests “in
connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1). The
United States Court of Appeals for the Federal Circuit has applied the definition of
“procurement” from 41 U.S.C. § 111 (formerly 41 U.S.C. § 403(2)) to define the scope of the
court’s bid protest jurisdiction:

       “[P]rocurement” includes all stages of the process of acquiring property or
       services, beginning with the process for determining a need for property or
       services and ending with contract completion and closeout.

Distributed Solutions, 539 F.3d at 1345 (quoting 41 U.S.C. § 111); accord Res. Conservation
Grp., 597 F.3d at 1244 (quoting, with approval, § 111 and Distributed Solutions); see also
RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999) (observing
that the phrase “in connection with” in the Tucker Act is “very sweeping in scope”). The Service
uses cooperative farming agreements to obtain the services of farmer-cooperators to feed
migratory birds and wildlife on the Refuges. In the court’s judgment, that activity is a
procurement.

        This conclusion comports with the United States Court of Appeals for the Federal
Circuit’s decision in CMS Contract Management Services, where instead of directly paying
landlords to subsidize rent for low-income families, the agency entered into Performance-Based
Annual Contribution Contracts (“PBACCs”) with Public Housing Agencies (“PHAs”), 18 that in
turn contracted with local landlords. 19 Id. at 1381–83. Potential bidders filed suit when the
agency decided to re-issue the PBACCs as cooperative agreements, instead of conducting a
competitive procurement. Id. at 1383. The appellate court determined that the intended
beneficiaries of the PBACCs were the low-income families; the PHAs and landlords were
intermediaries. Id. at 1386. Therefore, the agreements were used to obtain services from third-
parties, not to provide assistance to them. In this case, the intended beneficiaries are the
migratory birds and wildlife on the refuges. The farmer-cooperators are intermediaries. The
Administrative Record demonstrates that the Service contracted with farmer-cooperators, not to

       18
           A Public Housing Agency is a “State, county, municipality, or other governmental
entity or public body . . . authorized to engage in or assist in the development or operation of
public housing.”       CMS Contract Mgmt. Servs., 745 F.3d at 1382 (quoting 42
U.S.C. § 1437a(b)(6)(A)).
       19
           Although the appellate court did not explicitly address the jurisdiction of the United
States Court of Federal Claims in CMS Contract Management Services, the decision reflects an
implicit affirmation of the court’s jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 95 (1998) (“[E]very federal appellate court has a special obligation to satisfy itself not
only of its own jurisdiction, but also that of the lower courts in a cause under review, even
though the parties are prepared to concede it.” (internal citations and quotations omitted)).



                                                25
benefit them financially, but to obtain their services to provide food for migratory birds and
wildlife, in exchange for the farmers’ personal use of public-owned lands. AR 46–47
(identifying only benefits to waterfowl in the list of justifications for the McNary Refuge farming
program); AR 63 (same re: Umatilla Refuge); see also 16 U.S.C. § 668dd(a)(2) (“The mission of
the [Refuge] System is to administer a national network of lands and waters for the conservation,
management, and where appropriate, restoration, of the fish, wildlife, and plant resources and
their habitats within the United States[.]”). The fact that farmer-cooperators may profit from this
arrangement does not change their status as intermediaries. 20 As such, the cooperative farming
agreements in this case are procurements, subject to the Tucker Act.

        The United States Court of Federal Claims also has rejected the Government’s invitation
to narrow the court’s bid protest jurisdiction based on the procurement/cooperative agreement
dichotomy in the FGCAA. See 360Training.com, 104 Fed. Cl. at 587 (“Although the parties
devoted a substantial part of their briefs to the FGCAA, that Act is mostly irrelevant to this
[c]ourt’s jurisdiction under § 1491(b)(1).”). 21 Instead of looking to the FGCAA, the court’s
jurisdictional inquiry should focus on the definition of procurement in the CICA, 41
U.S.C. § 111. Id. at 587; see also id. at 583–84 (determining that “cooperative agreements,”
issued by OSHA to provide online training programs for employers and employees, were
procurements and that the court had jurisdiction to adjudicate the merits of the protest); id. at 585
(rejecting the Government’s focus on the FGCAA, and concluding that, “[w]hatever the
agreements are called, . . . [the agency] was using the agreements to obtain the services of third
parties”).

        As for the Government’s argument that 50 C.F.R. § 29.2 exempts the cooperative
farming agreements in this case from the court’s Tucker Act jurisdiction, to the extent the
Government is arguing that this regulation should be afforded deference per Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the Government is
mistaken. See B & H Med., LLC v. United States, __ Fed. Cl. __, 2014 WL 2854090, at *6 (June
23, 2014) (“[N]umerous circuit courts have considered whether Chevron deference is due to an
agency regulation interpreting a statutory judicial review provision, and have found uniformly

       20
          In addition, in CMS Contract Management Services, the agency elected to utilize
intermediaries, instead of staff resources, for budgetary reasons. See 745 F.3d at 1385. The
Service in this case also selected the option with the least budgetary impact. AR 49–50, 68–69,
190–93.
       21
          The Government cited 360Training.com for the proposition that the court must “‘turn[]
to the statutory structure of the FGCAA’ . . . for purposes of bid protest jurisdiction.” Gov’t
Mot. 16 (quoting 360Training.com, 104 Fed. Cl. at 579). The Government’s citation, however,
is misleading, because that section of the 360Training.com opinion is devoted only to describing
the statutory structure of the FGCAA to understand the parties’ arguments.                   See
360Training.com, 104 Fed Cl. at 579 (“As a threshold matter, the [c]ourt turns to the statutory
structure of the FGCAA . . . . The parties’ arguments are heavily influenced by their
interpretation of the FGCAA[.]”). Then, the court goes on to reject “the Government’s invitation
to needlessly graft extraneous limitations [i.e., the FGCAA] onto the Tucker Act,” determining
the FGCAA to be “mostly irrelevant to this [c]ourt’s jurisdiction.” Id. at 586–87.



                                                 26
that no Chevron deference is given because the task of determining a federal court’s jurisdiction
falls to the court, not an agency.”).

        For these reasons, the court has determined that it has jurisdiction under the Tucker Act
to adjudicate the claims alleged in the Amended Complaint, because the Service engaged in a
“process for determining the need for property or services” to comply with a congressional
mandate to feed refuge wildlife. See Distributed Solutions, 539 F.3d at 1346; see also id. (“To
establish jurisdiction . . . , the contractors must demonstrate that the [G]overnment at least
initiated a procurement, or initiated ‘the process for determining a need’ for acquisition[.]”
(quoting 41 U.S.C. § 111)). 22

                       b.      Standing.

        The plaintiff must establish that it is an “interested party” to have standing under 28
U.S.C. § 1491(b)(1) to contest the award of a federal contract. See Myers Investigative & Sec.
Servs., Inc. v. United States, 275 F.3d 1366, 1369 (Fed. Cir. 2002) (“[S]tanding is a threshold
jurisdictional issue.”). To determine whether a protester is an “interested party,” the United
States Court of Appeals for the Federal Circuit has articulated a two-part test: “(1) [the protestor]
was an actual or prospective bidder or offeror, and (2) [the protestor] had a direct economic
interest in the procurement or proposed procurement.” Distributed Solutions, 539 F.3d at 1344.
In a post-award protest, the plaintiff also must establish it had a “substantial chance” of receiving
the contract. See Digitalis Educ. Solutions, Inc. v. United States, 664 F.3d 1380, 1384 (Fed. Cir.
2012) (citing Rex Serv. Corp. v. United States, 448 F.3d 1305, 1308 (Fed. Cir. 2006) (“To prove
a direct economic interest as a putative prospective bidder, [plaintiff] is required to establish that
it had a substantial chance of receiving the contract.” (internal quotation omitted))). In addition,
the protestor must establish that the alleged errors in the procurement were prejudicial. See Todd
Constr., L.P. v. United States, 656 F.3d 1306, 1315–16 (Fed. Cir. 2011) (requiring a bid protestor
to show prejudice where the alleged violations do not involve “fundamental procedural rights”).

        In this case, the Government does not contest that Mr. Hymas is an “interested party.” Pl.
MJAR 10 (citing 28 U.S.C. § 1491(b)(1); see also Weeks Marine, Inc. v. United States, 575 F.3d
1352, 1359 (Fed. Cir. 2009) (adopting the Competition in Contract Act’s definition of “interested
party”)). The court also is satisfied that Mr. Hymas’s attempts to bid or otherwise participate in
the cooperative farming program for 2013 and 2014 evidence that he had a direct economic
interest that was affected adversely by the Service’s decision to award cooperative farming
agreements based on a priority system. See Distributed Solutions, 539 F.3d at 1344 (requiring
the protestor to have a “direct economic interest in the procurement”). In addition, given Mr.
Hymas’s long experience as a farmer, he had a substantial chance of securing a cooperative
farming agreement, but for the Service’s use of a priority selection system. AR 209 (detailing
Mr. Hymas’s past farming experience); see also Labbatt Food Serv. Inc. v. United States, 577

       22
           In addition, the Service’s Cooperative Farming Selection Process, implementing a
priority system, without the use of competitive procedures, violated agency regulatory authority
and is subject to judicial review. See Ctr. for Auto Safety v. Nat’l Highway Traffic Safety
Admin., 452 F.3d 798, 805 (D.C. Cir. 2006) (holding that agency guidance that constitutes a de
facto rule or binding norm is “subject to judicial review”).



                                                 27
F.3d 1375, 1378 (Fed. Cir. 2009) (holding that prejudice is demonstrated where the protestor
“can show that but for the error, it would have had a substantial chance of securing the contract”
(emphasis added)).

       For these reasons, the court has determined that Mr. Hymas has standing to seek an
adjudication of the claims alleged in the Amended Complaint in the United States Court of
Federal Claims.

                       c.     Mootness.

         The court also rejects the Government’s argument that Mr. Hymas’s challenges to the
2013 cooperative farming agreements are moot. See Gov’t Mot. 21. But see Gov’t Reply 4–5
(arguing the 2014 claims are not moot). “A defendant’s voluntary cessation of allegedly
unlawful conduct ordinarily does not suffice to moot a case.” Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 174 (2000). Mr. Hymas requested
injunctive relief in April 2013 and again in July 2013. In response, the court agreed to a stay of
proceedings, if the Service would consider Mr. Hymas for the 2014 farming cycle. See Dkt. 18
(“Government’s counsel advised the court that, as part of the process for selecting cooperators
for the 2014 farming cycle, the [Service] will hold informal discussions with potential
cooperators between September and November, 2013. . . . Mr. Hymas would be contacted during
that time regarding his candidacy for a cooperative farming agreement for the 2014 season.”).
The Service’s agreement to consider Mr. Hymas as a farmer-cooperator for the 2014 cycle,
however, does not moot his claims as to the 2013 cycle. See City of Mesquite v. Aladdin’s
Castle, Inc., 455 U.S. 283, 289 (1982) (“It is well settled that a defendant’s voluntary cessation
of a challenged practice does not deprive a federal court of its power to determine the legality of
the practice.”).

        On March 20, 2014, the Service also entered into four cooperative farming agreements
with incumbent farmer-cooperators, again based on a priority system. This evidences a
likelihood of repeat unlawful conduct. See Cal. Indus. Facilities Res., 100 Fed. Cl. at 409 (“A
notable exception to the mootness doctrine occurs when the action complained of is capable of
repetition, yet might again evade review.”). In addition, each of these agreements had a five-
year term. Dkt. No. 41. Prior to this bid protest, however, it appears that the Service never
entered into five-year term arrangements; in fact, a one-year term appears to have been the
norm. 23 AR 1, 6, 11, 16. Moreover, the Government did not provide these contracts to the court
until June 23, 2014—after the court ascertained they were never submitted to supplement the
Administrative Record, as required by RCFC 37(c). 24



       23
          The Umatilla and McNary Plans indicated that the cooperative farming agreements
should have three-year terms. AR 52, 73. Nevertheless, of the six agreements in the
Administrative Record, only one had a three-year term. AR 26 (Blasdel). Another had a four-
year term. AR 21 (Pierce). The other four had one-year terms. AR 1, 6, 11, 16.
       24
            RCFC 37(c)(1) provides:



                                                28
       For these reasons, the Government’s March 7, 2014 Motion To Dismiss is denied.

       B.       Plaintiff’s Motion For Judgment On The Administrative Record And The
                Government’s Response And Cross-Motion.

                1.      Plaintiff’s Argument.

       As to the merits, Mr. Hymas proffers six arguments to support his Motion For Judgment
On The Administrative Record. First, the Service’s award of cooperative farming agreements,
based on the Cooperative Farming Selection Process’s “Priority System,” instead of full and
open competition, violates the CICA. Pl. MJAR 13.

        Second, although the Government represents that Congress enacted several statutes that
exempt the Service’s priority system from the CICA, none does so. Pl. MJAR 10 (“Neither [16
U.S.C. § 664 nor 16 U.S.C. § 742f] authorizes [the Service] to enter into the [cooperative
farming agreements] at issue in this case.”). Section 664 provides that the Secretary of the
Interior may use cooperative agreements, but only in accordance with the provisions of 16
U.S.C. § 661. 25 Pl. MJAR 10. Section 661, in turn, authorizes cooperative agreements “to

       Failure to Disclose or Supplement. If a party fails to provide information or
       identify a witness as required by RCFC 26(a) or (e), the party is not allowed to
       use that information or witness to supply evidence on a motion, at a hearing, or at
       a trial, unless the failure was substantially justified or is harmless. In addition to
       or instead of this sanction, the court, on motion and after giving an opportunity to
       be heard:

             (A) may order payment of the reasonable expenses, including attorney’s fees,
                 caused by the failure;

             (B) [not used]; and

             (C) may impose other appropriate sanctions, including any of the orders listed
                 in RCFC 37(b)(2)(A)(i)–(vi).

RCFC 37(c)(1).
       25
            Section 661 provides:

       For the purpose of recognizing the vital contribution of our wildlife resources to
       the Nation . . . and to provide that wildlife conservation shall receive equal
       consideration and be coordinated with other features of water-resource
       development programs . . . for the purposes of sections 661 to 666c of this
       title . . . , the Secretary of the Interior is authorized

       (1) to provide assistance to, and cooperate with, Federal, State, and public or
           private agencies and organizations in the development, protection, rearing,
           and stocking of all species of wildlife, resources thereof, and their habitat . . . ;



                                                  29
provide assistance to, and cooperate with, Federal, State, and public or private agencies and
organizations.” Pl. MJAR 11. Therefore, the Service’s statutory authority is limited by 16
U.S.C. § 661 to agreements with the enumerated entities, not private individuals. Pl. MJAR 11.
In addition, in attempting to relate the purpose of subsection 742f(d) to refuge farming, the
Government misquotes and mischaracterizes 16 U.S.C. § 742f(d)(2). Pl. Resp. 11–12 (citing
Gov’t Mot. 29); see also id. at 11 (“[The Government’s] argument intentionally conflates the
‘purposes’ referenced [in] § 742f(d)(2)(A), i.e., the purposes of the National Wildlife Refuge
System Volunteer and Community Partnership Act of 1998, Pub. L. 105-242, § 2, Oct. 5, 1998,
112 Stat. 1574, with the ‘projects and programs’ that § 742f(d)(2)(B) authorizes the Secretary to
approve.”). In fact, the cooperative agreements referenced in section 742f(d) 26 do not relate to
refuge farming at all. Pl. MJAR 11–12 (citing 16 U.S.C. § 742f(d)).


       (2) to make surveys and investigations of the wildlife of the public domain . . . ;
           and

       (3) to accept donations of land and contributions of funds in furtherance of the
           purposes of said sections.

16 U.S.C. § 661.

       Section 664 provides:

       Such areas as are made available to the Secretary of the Interior . . . shall be
       administered by him directly or in accordance with cooperative agreements
       entered into pursuant to the provisions of section 661 of this title and in
       accordance with such rules and regulations for the conservation, maintenance, and
       management of wildlife, resources thereof, and its habitat thereon[.]

16 U.S.C. § 664.
       26
            Section 742f(d), as amended in 2004, provides:

       Notwithstanding chapter 63 of Title 31, the Secretary of the Interior may
       negotiate and enter into a cooperative agreement with a partner organization,
       academic institution, State or local government agency, or other person to
       implement one or more projects or programs for a refuge or complex of
       geographically related refuges in accordance with the purposes of this subsection
       and in compliance with the policies of other relevant authorities, regulations, and
       policy guidance.

16 U.S.C. § 742f(d)(2)(A).

       The purposes of subsection 742f(d) are:

       (1) to encourage the use of volunteers to assist the United States Fish and Wildlife
           Service in the management of refuges within the System;



                                                 30
         Third, the Service also violated the FGCAA. Pl. MJAR 13 (“Even if [the Service] was
authorized to enter into cooperative agreements, [the Service’s] selection of cooperative
agreements as the proper legal instrument to procure farming and maintenance services and
irrigation equipment violated the FGCAA” and was improper.). The cooperative farming
agreements at issue fall within the FGCAA’s definition of a procurement contract. Pl. MJAR
13–14 (citing 16 U.S.C. § 6303, 6305). That is so, because the Service used the cooperative
farming agreements to provide feed for migratory birds and wildlife, not to assist farmers. As
such, the farmer-cooperators are intermediaries and the Service engaged in a procurement. Pl.
MJAR 14 (citing 360Training.com, 104 Fed. Cl. at 580 (“An agency is acquiring the
intermediary’s services for its own direct benefit or use if the agency otherwise would have to
use its own staff to provide the beneficiaries the services offered by the
intermediary. . . . However, an agency is obtaining services for a public purpose if the agency is
charged with providing support or assistance to intermediaries as opposed to the final
beneficiaries. . . . Thus, a key inquiry is whether the agency’s focus is on providing a service to
the ultimate beneficiaries or on assisting the intermediaries in providing a service.”)). In
addition, the cooperative farming agreements fulfill a statutory mandate to conserve wildlife. As
such, the agreements by which this is accomplished are procurements. Pl. Resp. 3–4 (citing
360Training.com, 104 Fed. Cl. at 577–78 (“[W]here an agency has a statutory mandate to
provide a service, and the agency decides to use a cooperative agreement . . . , that agency has
engaged in a procurement process under the Tucker Act[.]”).

        Fourth, as to the Government’s contention that 50 C.F.R. § 29.2 interprets the terms
“agencies and organizations,” as used in 16 U.S.C. § 661, to include individuals, that
interpretation is implausible. Pl. Resp. 8–9. To the extent that the Government insists that 16
U.S.C. § 668dd(h) 27 somehow “ratifi[ed]” 50 C.F.R. § 29.2, to allow the Service to execute
“[c]ooperative agreements with persons for crop cultivation . . . on wildlife refuge[s],” the
Government is incorrect. Gov’t Mot. 26–27. In fact, 16 U.S.C. § 668dd(h) did not incorporate
50 C.F.R. § 29.2 into any statute and, in any event, cannot be interpreted to circumvent the
CICA, without specific statutory authority. Pl. MJAR 12–13 (citing 1996 U.S.S.C.A.N. 3342,
3349 (“Subsection (g) [now § 668dd(h)] is a technical provision which continues the regulations
now applicable to the various areas of the system[.]”)).



       (2) to facilitate partnerships between the System and non-Federal entities to
           promote public awareness of the resources of the System and public
           participation in the conservation of those resources; and

       (3) to encourage donations and other contributions by persons and organizations
           to the System.

National Wildlife Refuge System Volunteer and Community Partnership Enhancement Act of
1998, Pub. L. 105-242, § 2(b), 112 Stat. 1574 (Oct. 5, 1998).
       27
          Section 668dd(h) states: “Regulations applicable to areas of the [National Wildlife
Refuge] System that are in effect on October 15, 1966, shall continue in effect until modified or
rescinded.” 16 U.S.C. § 668dd(h).



                                                31
        Fifth, the priority system used by the Service to select farmer-cooperators does not
comply either with the Departmental Manual or the Service Manual. Pl. MJAR 15–16; Pl. Resp.
14. The competitive requirements contained in the Departmental Manual have never been
waived for the Service. Pl. MJAR 16 (citing 505 DM § 2.13 (2008) (“Competition in making
awards through cooperative agreements is strongly encouraged and is expected in awarding
discretionary grants[.]”)). And, although the Service Manual effectively replaced the Refuge
Manual, the former never authorized the Service to use a priority system. Pl. MJAR 16 (citing
516 FW § 6 (2014) (“Issuing Discretionary Grant and Cooperative Agreement Awards without
Competition.”)).        Instead, the Service Manual “encourage[d] competition when
making . . . cooperative agreement awards,” allowing for single source awards only when one or
more specific criteria, not applicable here, are met. See 516 FW § 6.7 (2014). 28 In this case, the
Service made no attempt to comply with the Service Manual’s competitive requirements. Pl.
MJAR 16 (citing 516 FW § 6 (2014) (listing exceptions to competition for cooperative
agreements)). Moreover, the February 26, 2014 Amendment to Director’s Order No. 42 of the
Service Manual constituted an unlawful attempt retroactively to modify Director’s Order No.
42—to justify the Service’s arbitrary, capricious, and irrational conduct in this case. Pl. Resp.
15–16.

        Sixth, assuming arguendo that the Refuge Manual was not revoked, the Service’s actions
regarding Mr. Hymas’s request to be considered as a farmer-cooperator for the 2013 and 2014
farming seasons were arbitrary, capricious, and lacked a rational basis. Pl. MJAR 17. As an
initial matter, the Service’s permittee selection process was neither competitive nor equitable, as
required by 5 RM § 17.11(A)(1) (1986), 29 nor did the Service explain how a priority system was

       28
           Section 6.7 of the Service Manual states that “[the Service] must encourage
competition when making grant and cooperative agreement awards, but [it] may issue single
source awards when at least one of the criteria in Table 6-3 is met[.]” 516 FW § 6.7(A) (2014).
Table 6-3 identifies the following criteria: (1) unsolicited proposal; (2) continuation of a
presently funded activity that would be adversely affected by competition; (3) legislative intent;
(4) unique qualifications of the applicant; and (5) emergencies. 516 FW § 6.7 tbl. 6-3 (2014)
(cross-referencing 505 DM § 2); see also 516 FW § 6.4 (2014). Of course, the Service did not
identify the program at issue in this case as one that could be satisfied by one farmer-cooperator.
       29
            Section 17.11(A)(1) of the Refuge Manual states, in pertinent part:

       Where the available space, time, or resource is limited, thereby limiting the
       capacity for accommodating the number of individuals pursuing compatible
       economic uses, a permittee selection process must be used to equitably limit the
       number of permittees. One of the following systems should be used as a selection
       process.

       (a) Competitive bids. . . .

       (b) Other equitable process. . . .

       (c) Priority system. . . . Generally, use of one of the above-described processes is
           preferable to a priority system. However, in those instances where a priority


                                                 32
“more appropriate to [the] program needs than competitive bidding.” Pl. MJAR 17 (quoting 5
RM § 17.11(A)(1)(c) (1986)); see also AR 87–92 (describing the 2013 selection process).
Therefore, the Service’s use of a priority system was arbitrary and capricious. In addition, the
4/29/13 Stenvall and 4/29/13 Glass Statements are the Service’s post-hoc attempt to satisfy the
Administrative Procedure Act (“APA”), but are insufficient to satisfy the rational basis
requirement of the APA. Pl. MJAR 17 (citing D & S Consultants, Inc. v. United States, 101 Fed.
Cl. 23, 35 n.11 (2011) (“[A]llowing [a post-hoc rationalization] to act as a gap filler . . . would
frustrate effective judicial review under the APA standards.” (quoting CRAssociates,
Inc. v. United States, 95 Fed. Cl. 357, 377 (2010))).

        Mr. Hymas also contends that as for the 2014 farming season, the Service’s decision to
reject him as a farmer-cooperator was arbitrary, capricious, and lacked a rational basis. Pl.
MJAR 18. The Refuge Manual did not authorize the Service to expand an incumbent farmer-
cooperator’s agreement to include additional cropland, without a competitive selection process.
Pl. MJAR 17 (citing AR 26–28; 5 RM 17.11(A)(1)(c) (1986)). 30 As such, the cooperative
farming agreements that expanded the scope of the public land being used in 2014 were
unlawful. Pl. MJAR 8, 18 (citing AR 26–28). In addition, the Service unlawfully used
cooperative farming agreements to obtain remediation services in exchange for increased crop
share. Pl. MJAR 17 (citing AR 28). The Refuge Manual states, “[f]rom a strictly legal
standpoint, . . . . [a]n example of a questionable practice would be an increased crop share
division to a farming cooperator in return for road maintenance or building maintenance not
directly related to the specific farming activity covered by that permit.” Pl. MJAR 17–18 (citing




            system is more appropriate to program needs, selection of participants may be
            made in the following order of priority.

            (1) Previous permittees or cooperators. . . .

            (2) Former landowners. . . .

            (3) Former tenants. . . .

            (4) Resident neighbors. . . .

            (5) Non-resident neighbors. . . .

            (6) Applicants from outside the local vicinity. . . .

5 RM § 17.11(A)(1) (1986).
       30
           5 RM § 17.11(A)(1)(c)(1) states: “Previous permitees or cooperators shall have priority
over all other applicants for the renewal of any privilege[.]” (emphasis added). According to
Plaintiff, this section of the Refuge Manual therefore allows only “renewal,” not expansion of a
privilege. Pl. MJAR 17.


                                                  33
5 RM § 17.9 (1986)). 31 But, that is exactly what happened with several of the farmer-
cooperators in this case. Moreover, although the 11/21/13 Stenvall Statement set forth the
Service’s reasons to justify the continued use of the priority system in 2014, it did

       not identify any evidence supporting the conclusion that past experience in the
       cooperative farming program, experience using the parcel of land to be farmed, or
       experience using land in the local vicinity are material to a cooperator’s
       capability to perform. [The 11/21/13 Stenvall Statement] does not identify any
       aspect of the cooperative farming program that is difficult to comply with, nor
       does [the Statement] identify any aspect of the parcels in the program that make
       successful farming difficult.

Pl. MJAR 18–19.

        In addition, although the 11/21/13 Stenvall Statement identified an unspecified risk that
potential farmer-cooperators could fail to complete the project, “due to illness, bankruptcy, or
lack of necessary equipment or skill,” the Service made no inquiry nor provided any explanation
as to how a priority system alleviates any of these hypothetical risks. Pl. MJAR 19. In fact, the
Service has no experience with new farmer-cooperators, since “the parcels at issue have been
farmed—apparently without competition—by the same cooperators for 36 years (AR 206), 40
years (AR 207), and 20 years (AR 208).” Pl. MJAR 19. To the extent that the Service needs to

       31
            Release R-007 of section 17.9 of the Refuge Manual provides:

       By their very nature, refuge economic use programs are fraught with
       administrative uncertainties. In an effort to “get the job done” refuge managers
       have employed many innovative approaches when dealing with private
       individuals who do things on refuge lands.

       From a strictly legal standpoint, most current practices are appropriate, some are
       questionable and a few may have been simply unlawful.

                                             * * *

       Congress, through appropriate channels, tells you how much you will have
       available to run your operation. You cannot supplement these funds, no matter
       how great the need or how noble the cause, by selling or bartering things in the
       private sector and adding the proceeds to your budget. It’s unlawful.

       Examples would be selling or “banking” surplus grain at a grain elevator and then
       having the elevator pay some of your bills or provide some other goods or
       services. Another example would be “banking” surplus or excess equipment with
       a private firm and then withdrawing different but supposedly equal-value items.
       A related example would be to acquire excess property with no intent to use it for
       any purpose other than trading stock.

17 RM § 17.9 (1986) (reprinted at AR 175).



                                                34
provide an economic incentive for farmers to grow crops to feed migratory birds and wildlife, the
use of reasonable multi-year agreements, not the priority system, provides that incentive, as the
Service has recognized. Pl. MJAR 19–20 (citing 6 RM 4.8(A)(1) (1985) (“[C]ooperative
farming agreements normally will be multi-year agreements.”)).

               2.      The Government’s Response And Cross-Motion.

        The Government’s principal response was to repeat its jurisdictional argument that the
cooperative farming agreements in this case are not procurement contracts and are exempt from
the CICA. Gov’t Mot. 31. In the same vein, the Service is not subject to the FGCAA. Gov’t
Mot. 30 (citing 16 U.S.C. § 742f(d)(2)(A) (authorizing the Service to enter into cooperative
agreements “notwithstanding [the FGCAA]”)). The cooperative farming agreements are not
procurement contracts under the FGCAA, because they are not used to “acquire” farming
“services for the direct benefit or use” of the Service. Gov’t Mot. 30–31. Instead, the Service is
“providing assistance” to farmer-cooperators, by granting them “the right to farm refuge land”
and making available “farming food for wildlife.” Gov’t Mot. 30–31 (citing 31 U.S.C. § 6303).
The Government’s Reply Brief, however, also argued that a procurement under the Federal
Acquisition Regulation (“FAR”) requires use of “appropriated amounts.” Gov’t Reply 8
(quoting 41 U.S.C. § 131 (defining “acquisition” as “the process of acquiring, with appropriated
amounts, by contract for purchase or lease, property or services . . . that support the mission and
goals of an executive agency”); see also 48 C.F.R. § 2.101(b)(2) (defining “acquisition,” and
referring to the use of “appropriated funds”); 48 C.F.R. § 2.101(b)(2) (further defining
“procurement” as an “acquisition”)).

        Second, the Government posits that three statutes authorize the Service to use cooperative
agreements, instead of procurement contracts, when engaging farmer-cooperators. The first
statute, the 1958 Fish and Wildlife Coordination Act (16 U.S.C. §§ 661, 664), authorizes the
Service to use cooperative agreements “[f]or the purpose of . . . wildlife conservation . . . , [and
to] cooperate with Federal, State, and public or private agencies and organizations.” Gov’t Mot.
25 (quoting 16 U.S.C. § 661). The second statute, the National Wildlife Refuge System
Administration Act of 1966 (16 U.S.C. § 668dd), implicitly ratified the Service’s 1960
regulations, which provided for “[c]ooperative agreements with persons for [farming] . . . on
wildlife refuge areas[.]” Gov’t Mot. 17, 26–27 (quoting 50 C.F.R § 29.2). The third statute, the
subsequent enactment of the National Wildlife Refuge System Volunteer and Community
Partnership Enhancement Act of 1998, as amended in 2004, also shows that Congress approved
of the Service’s use of cooperative farming agreements: “Notwithstanding [the FGCAA] . . . the
Secretary of the Interior may negotiate and enter into a cooperative agreement with a partner
organization, academic institution, State or local government agency, or other person to
implement one or more projects or programs for a refuge[.]” Gov’t Mot. 28 (quoting 16 U.S.C.
§ 742f(d)(2)(A)). In fact, the purpose of section 742f(d)(2) is to “promote the stewardship of
resources of the refuge through habitat maintenance, restoration, and improvement” and “support
the operation and maintenance of the refuge.”                  Gov’t Mot. 28 (quoting 16
U.S.C. § 742f(d)(2)(B)). Plaintiff’s argument—that cooperative farming agreements do not
serve the purpose of the entire 1998 Act—overlooks the enumerated purposes of the subsection
at issue. Gov’t Mot. 29. The general purposes of the 1998 Act are served, as the cooperative
farming agreements “encourage . . . other contributions by persons and organizations to the
System,” i.e., farming labor, and promote “public participation in the conservation of [wildlife]


                                                35
resources.” Pub. L. 105-242, § 2. In sum, these statutes evidence that Congress authorized the
use of cooperative farming agreements and exempted the Service from the CICA. Gov’t Mot.
29.

        Third, Section 661 authorizes the Service to use cooperative agreements to coordinate
wildlife management with “public or private agencies or organizations.” 16 U.S.C. § 661. The
dictionary definitions of “private” and “agency,” both reference “person.” Gov’t Mot. 25–26
(citing MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 988 (11th ed. 2005) (defining “private”
as “concerning an individual person, company, or interest”); see also id. at 24 (defining “agency”
as “a person or thing through which power is exerted or an end is achieved” or “an establishment
engaged in doing business for another”)). These competing definitions establish that the
statutory language is ambiguous, requiring agency interpretation. Gov’t Mot. 23–24 (citing
Chevron, 467 U.S. 837); Gov’t Mot. 26 (quoting Info. Tech. & Applications Corp. v. United
States, 316 F.3d 1312, 1320–21 (Fed. Cir. 2003) (“The existence of alternative dictionary
definitions of a term, or the failure of dictionary definitions to provide a plain and unambiguous
meaning of statutory language, indicates that the statute is open to interpretation.”)). By
promulgating 50 C.F.R. § 29.2, the Service has interpreted the phrase “public or private agencies
or organizations” to include “any person,” 32 so that “[c]ooperative agreements [may be entered
into] with persons for crop cultivation . . . on wildlife refuge areas[.]” Gov’t Mot. 26 (quoting 50
C.F.R. § 29.2) (emphasis added). Accordingly, the court must defer to the Service’s “reasonable
interpretation” of the undefined and ambiguous phrase, “private agencies and organizations,”
contained in 16 U.S.C. § 661, to include persons with whom the Service may enter into
cooperative agreements, pursuant to 50 C.F.R. § 29.2. Gov’t Mot. 26–27; Gov’t Reply 6.

        Fourth, the Service’s reliance on the Refuge Manual’s reference to a priority system to
select farmer-cooperators in 2013 and 2014 was lawful. Gov’t Mot. 31. Contrary to Plaintiff’s
assertion, the Refuge Manual remains in effect. Gov’t Mot. 31–33. Amendment 15 to Director’s
Order No. 42 retroactively “clarif[ied] that the effective date of revocation [of the Refuge
Manual] had been postponed ‘indefinitely.’” Gov’t Mot. 32 (quoting Director’s Order No. 42
Amend. 15 (Feb. 26, 2014)). Moreover, the Service followed the Refuge Manual in using a
priority system to award cooperative farming agreements. Gov’t Mot. 35–36 (citing 5
RM § 17.11(A)(1)(c) (1986) (discussing cropland management in the context of the priority
system)). And, as the 4/29/13 Stenvall Statement explains, the Service chose the priority system
as “most appropriate” for the program. Gov’t Mot. 36–38 (citing AR 190–92; see also Bowman
Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974) (“[W]e will uphold a
decision of less than ideal clarity if the agency’s path may reasonably be discerned.”)). The
Service also elected to use a priority system, because it provided “the lowest exposure to risk.”
Gov’t Mot. 38 (quoting AR 191). “The question of how best to accomplish the agency’s mission
and manage the risk of failure squarely falls within the agency’s administrative expertise.”
Gov’t Mot. 39.



       32
           The Service’s regulations define “person” as “an individual, club, association,
partnership, corporation, or private or public body.” Gov’t Mot. 26 (quoting 50 C.F.R. § 1.6
(emphasis added)).



                                                36
       Likewise, the Service had a rational basis for selecting other farmer-cooperators for the
2013 farming season, instead of Mr. Hymas, as the 2013 Stenvall and Glass Statements reflect.
Gov’t Mot. 40−41. The Administrative Record shows that the farmer-cooperators selected had a
successful history of farming refuge land; Mr. Hymas did not have that type of experience.
Gov’t Mot. 39–40 (citing AR 6–25, 26–42, 87–92). Therefore, the 2013 selection process was
conducted in a manner “consistent with agency guidelines that give priority to ‘previous
cooperators,’” which “squarely fall within the agency’s technical expertise.” Gov’t Mot. 40
(quoting 5 RM § 17.11(A)(1)(c) (1986)). For this reason, the Refuge Manual specifically
provides that priority be given to neighbors within the local vicinity. Gov’t Mot. 41 (citing 5
RM § 17.11(A)(1)(c) (1986)).

       The Service also had a rational basis for selecting incumbent farmer-cooperators for the
2014 farming season, instead of Mr. Hymas, because he did not have priority status and all of
those selected were incumbents, and one was also a former landowner. Gov’t Mot. 44 (citing
AR 212–15).

        Therefore, Mr. Hymas cannot show “a clear and prejudicial violation of applicable
statutes or regulations.” Gov’t Mot. 42 (quoting Impresa Construzioni Geom. Domenico
Garufi v. United States, 238 F.3d 1324, 1333 (Fed. Cir. 2001)).

               3.      The Court’s Resolution.

                       a.      Standard Of Review.

        The United States Court of Federal Claims may grant a motion for judgment on the
Administrative Record, pursuant to Rule 52.1 of the Rules of the Court of Federal Claims. The
existence of a genuine issue of material fact does not require the court to conduct an evidentiary
proceeding, nor prohibit the court from adjudicating that motion. See Bannum v. United States,
404 F.3d 1346, 1353–54 (2005) (“RCFC [52.1] requires the [United States] Court of Federal
Claims, when making a prejudice analysis in the first instance, to make factual findings from the
record evidence as if it were conducting a trial on the record.”); see also Meidl v. United States,
114 Fed. Cl. 607, 613 (2014) (“The standard for judgment on the administrative record, pursuant
to RCFC 52.1, is whether the plaintiff has met the burden of proof to show that the decision was
without a rational basis or not in accordance with the law, given all the disputed and undisputed
facts in the administrative record.”).

        The Tucker Act, as amended by the Administrative Dispute Resolution Act, Pub. L. No.
104-320, § 12, 110 Stat. 3870, 3874 (Oct. 19, 1996), authorizes the court to adjudicate challenges
to agency decisions, under the standards set forth in the Administrative Procedure Act, 5
U.S.C. § 706. See 28 U.S.C. § 1491(b)(4) (“In any action under this subsection, the courts shall
review the agency’s decision pursuant to the standards set forth in section 706 of title 5.”); see
also 5 U.S.C. § 706(2)(A) (“The reviewing court shall . . . hold unlawful and set aside agency
action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law[.]”); see also Banknote Corp. of Am., Inc. v. United States,
365 F.3d 1345, 1350 (Fed. Cir. 2004) (“Among the various APA standards of review in section
706, the proper standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A): a
reviewing court shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of


                                                 37
discretion, or otherwise not in accordance with law.’” (citations omitted)); see also Weeks
Marine, 575 F.3d at 1358 (same). An agency’s decision to award a contract may be set aside if
there has been a violation of law, regulation, or procedure, but “the disappointed bidder must
show a clear and prejudicial violation of applicable statutes or regulations.” Axiom Res. Mgmt.,
Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009).

        In addition, “[c]ourts have found an agency’s decision to be arbitrary and capricious
when the agency ‘entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the agency, or [the decision]
is so implausible that it could not be ascribed to a difference in view or the product of agency
expertise.’” Ala. Aircraft Indus. Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed.
Cir. 2009) (quoting Motor Vehicle Manufacturer’s Assoc. v. State Farm Mut. Auto Ins. Co., 463
U.S. 29, 43 (1983)). This rule recognizes a zone of acceptable results in each particular case and
requires that the final decision evidence that the agency “considered the relevant factors” and is
“within the bounds of reasoned decision making.” Baltimore Gas & Elec. Co. v. Natural Res.
Def. Council, Inc., 462 U.S. 87, 105 (1983); see also Weeks Marine, 575 F.3d at 1368–69 (“We
have stated that procurement decisions invoke highly deferential rational basis review . . . .
Under that standard, we sustain an agency action evincing rational reasoning and consideration
of relevant factors.” (internal quotation marks and citations omitted)).

        The United States Court of Appeals for the Federal Circuit also has held that when an
award decision is challenged for lacking a rational basis, the trial court “must sustain an agency
action[,] unless the action does not evince rational reasoning and consideration of relevant
factors.” Savantage Fin. Servs. v. United States, 595 F.3d 1282, 1286 (Fed. Cir. 2010) (internal
alterations, quotation marks, and citations omitted); see also Centech Grp., Inc. v. United States,
554 F.3d 1029, 1037 (Fed. Cir. 2009) (holding that the trial court must “determine whether the
contracting agency provided a coherent and reasonable explanation of its exercise of discretion,
and the disappointed bidder bears a heavy burden of showing that the award decision had no
rational basis”).

                      b.      Whether The Service’s Priority Selection System Violates The
                              Competition In Contracting Act.

       The CICA provides:

       Except as provided in sections 3303, 3304(a), and 3305 of this title and except in
       the case of procurement procedures otherwise expressly authorized by statute, an
       executive agency in conducting a procurement for property or services shall—

               (1)    obtain full and open competition through the use of competitive
                      procedures in accordance with the requirements of this division
                      and the Federal Acquisition Regulation; and

               (2)    use the competitive procedure or combination of competitive
                      procedures that is best suited under the circumstances of the
                      procurement.




                                                38
41 U.S.C. § 3301(a) (emphasis added). “Procurement” is defined by Congress to include “all
stages of the process of acquiring property or services.” 41 U.S.C. § 111 (emphasis added). 33 In
this case, the Service is acquiring the services of the farmer-cooperators to feed migratory birds
and wildlife in the refuges. As such, the Service is acquiring “property or services” for purposes
of the CICA.

        The Service, however, did not conduct “full and open competition through the use of
competitive procedures.” AR 93 (noting that the Service did not solicit bids for the 2013
program and that the Service simply “continue[s] to utilize existing cooperators
[indefinitely] . . . unless there is a problem with their performance”); AR 190 (citing 5
RM § 17.11(A)(1)(C)). Nor did the Service “use the competitive procedure or combination
[thereof] best suited under the circumstances.” Therefore, the court has determined that the
Service’s Cooperative Farming Selection Process’s priority system violated the CICA.

        The Government counters that the CICA does not apply to the Service’s award of
cooperative farming agreements, because the CICA only applies to procurements made with
appropriated funds. Gov’t Reply 7. As an initial matter, this argument was raised, for the first
time, in the Government’s March 24, 2014 Reply. 34 It is “well established that arguments not
raised in the opening brief are waived.” SmithKline Beecham, 439 F.3d at 1319; Eden Isle
Marina, Inc. v. United States, 89 Fed. Cl. 480, 512 n.37 (2009) (“Raising the issue for the first
time in a reply brief does not suffice [to avoid waiver]; reply briefs reply to arguments made in
the response brief—they do not provide the moving party with a new opportunity to present yet
another issue for the court’s consideration.” (quoting Novosteel SA v. U.S. Bethlehem Steel
Corp., 284 F.3d 1261, 1274 (Fed. Cir. 2002)).



       33
           See CMS Contract Mgmt. Servs., 745 F.3d at 1381 (“When using a procurement
contract, an agency must adhere to federal procurement laws, including the Competition in
Contracting Act (CICA), 41 U.S.C. § 3301, as well as the Federal Acquisition Regulation
(FAR).”).
       34
            Although the Government made a one-sentence reference to this argument,
unaccompanied by any analysis, in the “summary of the argument” section of the March 7, 2014
Motion To Dismiss, to avoid waiver a party must present “a developed argument” in its opening
brief. See SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006)
(holding that a party must articulate a “developed argument,” as opposed to alluding to “mere
statements of disagreement,” in its opening brief to avoid waiver); Laborers’ Int’l Union of N.
Am. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d. Cir. 1994) (“An issue is waived unless a
party raises it in its opening brief, and for those purposes a ‘passing reference to an issue . . . will
not suffice to bring that issue before [the] court.’” (quoting Simmons v. City of Philadelphia, 947
F.2d 1042, 1066 (3d Cir. 1991)). A one-sentence reference does not “even approach[] a
substantive argument,” and as such, the court deems the Government’s argument waived. See
SmithKline Beecham, 439 F.3d at 1320; see also United States v. Dunkel, 927 F.2d 955, 956 (7th
Cir. 1991) (“A skeletal ‘argument,’ really nothing more than an assertion, does not preserve a
claim.”).



                                                  39
        Assuming, arguendo, that the Government’s appropriated funds argument was not
waived, the court nonetheless has determined it is without merit, because it is premised on a
misreading of the relevant statutes and unsupported by the Administrative Record. As a matter
of law, again in section 111, “procurement” is defined, for purposes of Subtitle I of Title 41, as
including “all stages of the process of acquiring property or services.” 41 U.S.C. § 111
(emphasis added). In contrast, section 131 defines “acquisition,” solely for purposes of
Subchapter II (Division B Definitions) of Subtitle I of Title 41, as “the process of acquiring, with
appropriated amounts, . . . property or services.” 41 U.S.C. § 131 (emphasis added). Based on
this statutory framework, the Government argues that the CICA does not apply to the
cooperative farming agreements, because in the CICA, the term “procurement” “only pertains to
acquisitions made with appropriated funds.” Gov’t Reply 7–8. Here, the Government imports
the definition of “acquisition” as used in Title 41, Subtitle I, Subchapter II, into the meaning of
“procurement,” that delineates the scope of the CICA’s “full and open” competition requirement.
See 41 U.S.C. § 111 (defining “procurement” for purposes of Title 41, Subtitle I); see also 41
U.S.C. § 3301 (requiring “full and open competition” when an executive agency is “conducting a
procurement for property or services”). The text of section 131 makes it abundantly clear that
the definition of “acquisition” applies only to Title 41, Subtitle I, Subchapter II, and not to any
other section in Subtitle I of Chapter 41, including provisions of the CICA. See 41 U.S.C. § 131
(“In division B, the term ‘acquisition’— (1) means the process of acquiring, with appropriated
amounts, . . . property or services[.]”); see also 360Training.com, 104 Fed. Cl. at 586 (“The
definition of acquisition in [section] 131 explicitly provides that it only applies to Division B and
therefore it does not apply to [section] 111 in Division A.”). Further, the Government posits that
“acquisition” and “acquiring” are interchangeable, even though the former is defined in section
131 with a technical meaning, while the latter is a generally understood and statutorily-undefined
term. As such, the Government disregards a congressional choice to use these terms in different
ways. See Mohamad v. Palestinian Authority, __ U.S. __, 132 S. Ct. 1702, 1708 (2012)
(explaining that courts “generally seek to respect Congress’ decision to use different terms to
describe different categories of people or things”); see also Food & Drug Admin. v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 132 (2000) (“In determining whether Congress has
specifically addressed the question at issue, a reviewing court should not confine itself to
examining a particular statutory provision in isolation. The meaning—or ambiguity—of certain
words or phrases may only become evident when placed in context.”); Davis v. Mich. Dep’t of
Treasury, 489 U.S. 803, 809 (1989) (“It is a fundamental canon of statutory construction that the
words of a statute must be read in their context and with a view to their place in the overall
statutory scheme.”). As explained above, the term “procurement” is broader than the term
“acquisition,” and, quite clearly, “had Congress intended for the ‘with appropriated funds’ clause
to apply to ‘procurement,’ it would ha[ve] included those words in . . . § 111.” 360Training.com,
104 Fed. Cl. at 586–87.

        And, as a matter of fact, the Service personnel who supervised the Cooperative Farming
Process in 2013 and 2014 were paid salaries with appropriated funds. See 17 RM § 17.9 (1986)
(reprinted at AR 175) (noting that “Congress . . . tells you how much you will have available to
run your operation. You cannot supplement these funds, no matter how great the need or how
noble the cause[.]”).




                                                 40
       For these reasons, the court has determined, as a matter of law and fact, that the
cooperative farming agreements at issue in this case are procurements and subject to the
requirements of the CICA.

                       c.     Whether Any Of The Statutes Cited By The Government
                              Exempt The Service From Complying With The Competition
                              In Contracting Act.

       The Government cites three statutes that it argues exempt the Service’s cooperative
farming agreements from the CICA.

                              i.      The 1958 Fish And Wildlife Coordination Act.

        The Government cites the 1958 Act (codified, as amended, at 16 U.S.C. §§ 661–64), as
authority for the Service to use a noncompetitive selection process in awarding cooperative
farming agreements. Gov’t Mot. 17, 25. Section 664 therein provides that refuge areas “shall be
administered by [Interior] directly or in accordance with cooperative agreements entered into
pursuant to the provisions of section 661 of this title . . . for the conservation, maintenance, and
management of wildlife[.]” 16 U.S.C. § 664 (emphasis added). In turn, section 661 authorizes
Interior “to provide assistance to, and cooperate with, Federal, State, and public or private
agencies and organizations in [supporting] all species of wildlife[.]” 16 U.S.C. § 661.
According to the Government, these statutory provisions together “authorize[] the agency to use
‘cooperative agreements,’ rather than procurement contracts, to promote wildlife conservation.”
Gov’t Mot. 17.

        As an initial matter, it is impossible for a 1958 statute to preempt the CICA, which was
not enacted until 1984. In addition, the “cooperative agreements” authorized by the 1958 Act
have nothing to do with the cooperative farming agreements at issue here. The purpose of the
1958 Act was to “provide for more effective integration of a fish and wildlife conservation
program with Federal water-resource developments.” Pub. L. No. 85-624, 72 Stat. 563, 563. As
such, sections 661 and 664 concern agreements between the Service and other “Federal, State,
and public or private agencies and organizations” to coordinate conservation between these
various organizations. See 16 U.S.C. § 661; see also id. § 663 (requiring wildlife conservation
plans to be approved jointly by the administrating federal agency, the Secretary of the Interior,
and the head of the state wildlife resources agency); id. § 664 (allowing lands of value to
migratory birds to “be made available without cost directly to the State agency having control
over wildlife resources” if this would be “in the public interest”). For example, in order to
mitigate wildlife habitat loss due to completion of the McNary Lock and Dam Project, in 1956
the United States Department of the Army made land surrounding the resulting reservoir, known
as Lake Wallula, available to Interior for conservation and management of wildlife resources.
AR 44; see also 62 Stat. 240–41 (1948); McNary National Wildlife Management Area,
Washington: Designation of Area and Notice of Applicability of Regulations, 21 FED. REG. 2991
(May 4, 1956). Today, the Service manages this refuge under a cooperative agreement with the
Army Corps and it is exemplary of the type of “cooperative agreement” identified by 16
U.S.C. § 664. AR 44.




                                                41
        Therefore, the cooperative farming agreements in this case are not used to coordinate
wildlife protection between the Service and another agency or organization. Instead, they are
used to induce private farmers to provide the Service with the means to fulfill their statutory
mandate to feed migratory birds and wildlife. As such, the farmer-cooperators function as
contractors for the Service. Thus, neither section 661 nor 664 exempt the Service from the
competitive requirements of the CICA.

                              ii.    The 1966 National            Wildlife     Refuge     System
                                     Administration Act.

        The second statute cited by the Government is the 1966 National Wildlife Refuge System
Administration Act (codified at 16 U.S.C. § 668dd(h)). The Government contends that this
statute implicitly exempted the Service’s award of cooperative farming agreements, without
competition. Gov’t Mot. 27. Again, a 1966 statute cannot preempt a 1984 statute. In addition,
there is no evidence in the Administrative Record or in legislative history that Congress was
concerned with, or even knew that, cooperative farming agreements were being awarded without
competition, when the 1966 Act was enacted. See 1966 U.S.C.C.A.N. 3342, 3349 (“Subsection
(g) [(the original subsection for 668dd(h))] is a technical provision which continues the
regulations now applicable to the various areas of the system until modified or rescinded by the
Secretary.”). As such, section 668dd(h) did not exempt the Service from the competitive
requirements of the CICA.

                              iii.   The 1998 National Wildlife Refuge System And
                                     Community Partnership Enhancement Act.

        The third statute cited by the Government as exempting the Service from the CICA is the
National Wildlife Refuge System and Community Partnership Enhancement Act (the “1998
Act”), as amended in 2004 by the National Wildlife Refuge Volunteer Act (codified at 16 U.S.C.
§ 742f). Gov’t Mot. 27–28. Section 742f(d) allows the Secretary of the Interior,
“[n]otwithstanding [the FGCAA],” to “enter into a cooperative agreement with a partner
organization . . . or other person to implement one or more projects or programs . . . in
accordance with the purposes of this subsection.” 16 U.S.C. § 742f(d)(2)(A). Subsection (B)
of § 742f(d)(2) further states that a cooperative agreement can be used for “habitat maintenance,
restoration, and improvement,” which encompasses the purpose of cooperative farming
agreements. Gov’t Mot. 28.

        The Government’s contention that section 742f(d)’s reference to cooperative agreements
includes the type of cooperative farming agreements at issue in this case does not comport with
the 1998 Act nor with its legislative history. The stated purpose of the 1998 Act was “to
promote volunteer programs and community partnerships for . . . national wildlife refuges.” 112
Stat. 1574; see also id. § 2(b) (“The purposes of this Act are—(1) to encourage the use of
volunteers . . . (2) to facilitate partnerships between the [Refuge] System and non-Federal
entities . . . and (3) to encourage donations and other contributions by persons and organizations
to the [Refuge] System.”). Cooperative farming agreements are not “voluntary programs or
community partnerships,” but contractual arrangements whereby farmer-cooperators use public
land to grow crops, if they reserve part of the yield to feed migratory birds and wildlife.



                                               42
       Moreover, in discussing the proposed 2004 amendments to the Fish and Wildlife Act of
1956, the House Report describes how the volunteer programs should work. H.R. Rep. 108-385,
at 1165–66 (2003) (emphasis added).

       [T]he 1998 amendments added a new provision to enhance community
       partnership with the Refuges. . . . In light of this expanded authority, the
       Committee hopes that the Fish and Wildlife Service will examine the usefulness
       of additional volunteer coordinator positions . . . .                 [The 2004
       amendments] . . . expand[] the authority for the Secretary of the Interior to hire
       volunteer coordinators beyond just the pilot programs originally authorized.

H.R. Rep. 108-385, at 1165–66 (2003); see also S. Rep. 108-315, at 3 (2004) (observing that the
United States House of Representatives adopted an amendment, offered by Rep. Gilchrest, “to
expand the authority of the Secretary to hire full-time volunteer coordinators at more Refuges”).
Again, the cooperative farming agreements at issue here, unlike the projects and programs listed
in section 742f(d), are not agreements between the Service and volunteers who perform a service
without any benefit. 35

       Finally, when Congress amended the 1998 Act in 2004, it could have exempted the
Service from the CICA, but did not do so. Compare P.L. 105-242, 112 Stat. 1574, § 5 (Oct. 5,
1998) (“The Secretary of the Interior may enter into a cooperative agreement (within the
meaning of chapter 63 of title 31, United States Code)[.]”), with P.L. 108-327, 118 Stat.
1271, § 4 (Oct. 16, 2004) (“Notwithstanding chapter 63 of title 31, United States Code, the
Secretary of the Interior may negotiate and enter into a cooperative agreement[.]”); see also AK
Steel Corp. v. United States, 226 F.3d 1361, 1374 (Fed. Cir. 2000) (“Congress is presumed to
know the administrative or judicial interpretation given a statute when it adopts a new law
incorporating the prior law.”); cf. Department of the Interior, Environment, and Related Agencies
Appropriations Act, 2010, P.L. 111-88, 123 Stat. 2904, 2923 (Oct. 30, 2009)
(“[N]otwithstanding requirements of the Competition in Contracting Act, the Secretary, for
purposes of hazardous fuels reduction activities, may obtain maximum practicable competition”
among selected entities.).

      For these reasons, the court has determined that none of the aforementioned statutes
exempt the Service from the competitive requirements of the CICA.




       35
          Of course cooperative farming agreements could be considered projects and programs
to “promote the stewardship of resources of the refuge.” 16 U.S.C. § 742f(d)(2)(B)(i). The
Government, however, does not provide any meaningful limitation on the types of agreements
that the Service could enter into, pursuant to section 742f(d). Following the Government’s
reasoning, the purchase of supplies from “a person” to create signs to protect wildlife from errant
hikers equally would fall under the scope of the 742f(d)’s cooperative agreements, because such
supplies would “promote the stewardship of resources of the refuge.”                       See 16
U.S.C. § 742f(d)(2).



                                                43
                       d.     The Service’s Priority Selection System Violates The Federal
                              Grant And Cooperative Agreement Act.

        Like the CICA, the FGCAA delineates requirements for federal procurement law and
uses the terms “property or services.” Compare 41 U.S.C. § 3301(a) (requiring an agency to use
“full and open competition” when procuring “property or services”), with 31 U.S.C. § 6303
(requiring that “[a]n executive agency shall use a procurement contract . . . when . . . the
principal purpose of the instrument is to acquire (by purchase, lease, or barter) property or
services for the direct benefit or use of the United States Government”) (emphasis added). In
contrast, “[a]n executive agency shall use a cooperative agreement . . . when . . . the principal
purpose of the relationship is to transfer a thing of value to the State, local government, or other
recipient to carry out a public purpose of support or stimulation[.]” 31 U.S.C. § 6305.

        In this case, whether the Service violated the FGCAA turns on whether the Service’s
cooperative farming agreements procure property or services for the “direct benefit or use” of the
Government. The court’s decision that they do is informed by CMS Contract Management
Services, wherein the United States Court of Appeals for the Federal Circuit explained that, in
determining whether an agency’s decision to use a procurement contract or a cooperative
agreement complies with the FGCAA, “‘[t]he fact that the product or service produced by the
intermediary may benefit another party is irrelevant.’ In the case of an intermediary relationship,
‘the proper instrument is a procurement contract.’” 745 F.3d at 1386 (quoting S. Rep. No. 97-
180, at 5 (1981)).

        As discussed in the jurisdiction section of this Memorandum Opinion and Final Order,
the court determined that the intended beneficiaries of the cooperative farming agreement are the
migratory birds and wildlife on the McNary and Umatilla Refuges, because Congress charges the
Service with this responsibility. AR 46–47 (McNary Refuge); AR 67 (Umatilla Refuge). In fact,
the Service effectively leases refuge land to farmer-cooperators in exchange for their service in
growing crops to feed migratory birds and wildlife in the refuges. The name of the contractual
instrument is irrelevant. What is relevant is that the FGCAA requires the Service to use a
procurement contract whenever it acquires property or services “by purchase, lease or barter.”
31 U.S.C. § 6303. See CMS Contract Mgmt. Servs., 745 F.3d at 1379, 1385–86 (holding that
agreements to acquire services to support agency staff and benefit a third party are procurement
contracts); see also 360Training.com, 104 Fed. Cl. at 585 (“Whatever the agreements are called,
the [c]ourt finds that [the agency] . . . . was conducting a ‘procurement.’”). The Service did not
do so in this case. 36 Therefore, the court has determined that the Service violated the FGCAA.



       36
          The fact that the Refuge Manual also defines “cooperative agreements” broadly to
include acquisition of goods and services, further supports Plaintiff’s argument that the
cooperative farming agreements concern the agency’s acquisition of goods and services.
Compare 41 U.S.C. § 111 (defining “procurement”) and 31 U.S.C. § 6303 (requiring the use of a
procurement contract “to acquire (by purchase, lease, or barter) property or services for the direct
benefit or use of the United States Government”), with 5 RM § 17.11(C)(1)(d) (“Cooperative
agreements are formal agreements executed by the Service involving the exchange of goods,
services, or privileges . . . . Care must be exercised to be certain that the goods, services, or


                                                44
                      e.      The 1958 Act Is Not Ambiguous And, In Any Event, 50
                              C.F.R. § 29.2 Cannot Exempt The Service From The
                              Competition In Contracting Act.

        Section 4 of the 1958 Act (codified at 16 U.S.C. § 664) authorizes the Service to enter
into “cooperative agreements” in accordance with Section 1 of the 1958 Act (codified at 16
U.S.C. § 661). See 16 U.S.C. § 664 (“Such areas as are made available to the Secretary of the
Interior . . . shall be administered by him directly or in accordance with cooperative agreements
entered into pursuant to the provisions of section 661 of this title . . . for the conservation,
maintenance, and management of wildlife, [and] resources thereof[.]”). Section 661, in turn,
authorizes the Service to “cooperate with, Federal, State, and public or private agencies and
organizations in the development, protection, rearing, and stocking of all species of wildlife,
resources thereof, and their habitat.” 16 U.S.C. § 661 (emphasis added).

        As a threshold matter, the court has determined that the phrase “Federal, State, and public
or private organizations” is not ambiguous, and requires no agency expertise to interpret the
plain meaning of the statute. See Chevron, 467 U.S. at 842–83 (“If the intent of Congress is
clear, that is the end of the matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.”); see also General Dynamics Land Sys.,
Inc. v. Cline, 540 U.S. 581, 600 (2004) (observing that the Chevron step one inquiry involves the
“regular interpretative method” of statutory construction). This phrase simply describes the
types of governmental and private entities that need to coordinate to conserve wildlife; this
phrase has nothing to do with cooperative farming agreements between the Service and private
farmers. See MCI Telecomms. Corp. v. AT&T, 512 U.S. 218, 229 (1994) (“[A]n agency’s
interpretation of a statute is not entitled to deference when it goes beyond the meaning that the
statute can bear[.]”).

        As for the Government’s interpretive argument, the 1960 regulation cannot interpret a
1958 Act to exempt the Service from the CICA, which was not enacted until 1984. In addition,
50 C.F.R. § 29.2 neither sets forth a formal definition nor any reasoning by the Service that
supports the Government’s proffered interpretation, and therefore is not entitled to deference.
See S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 377–78 (2006) (holding that
Chevron deference is not required when defining “discharge,” because “neither the [United
States Environmental Protection Agency] nor [the Federal Energy Regulatory Commission]
ha[d] formally settled the definition, or even set out agency reasoning”).

       Moreover, the Government completely ignores the context in which this phrase is used in
the 1958 Act. The Government contends that the Service has interpreted 16 U.S.C. §§ 661 and
664 “broadly,” to read “‘public or private agencies and organizations’ . . . to mean any ‘person,’”
thereby authorizing the Service to award cooperative farming agreements to private individuals,
without competition. Gov’t Mot. 26 (citations omitted). Pursuant to “the ejusdem generis rule of
construction the general words are confined to the class and may not be used to enlarge it.”
Cleveland v. United States, 329 U.S. 14, 18 (1946). Likewise, the suggestion that “agencies,” as


privileges which accrue to the cooperator and to the Service are stated explicitly.” (emphases
added)).



                                                45
used in 16 U.S.C. § 661, refers to a principal-agent argument makes no sense in the context of
the statute. The fact that alternative dictionary definitions exist evidences ambiguity, only if the
alternatives make sense within the context of the statute. See MCI Telecomms., 512 U.S. at 226
(rejecting the agency’s argument that “courts must defer to the agency’s choice among available
dictionary definitions”); see also Nat’l R.R. Passenger Corp. v. Boston & Me. Corp., 503 U.S.
407, 418 (1992) (“The existence of alternative dictionary definitions . . . , each making some
sense under the statute, itself indicates that the statute is open to interpretation.” (emphasis
added)); see also id. at 418 (“[A] reviewing court need not accept an interpretation which is
unreasonable.”).

       In addition, 50 C.F.R. § 25.12 37 uses the term “cooperative agreement” to mean the
coordination of an agreement between the Service and a state agency to promote wildlife
conservation. That same section describes “refuge management economic activity,” as farming
on refuge land by a Service-authorized agent or contractor, conducted through the instrument of
“cooperative agreements” later described under 50 C.F.R. § 29.2. 38 It is this second use of the

       37
            Section 25.12 provides:

       Coordination area means a wildlife management area made available to a State by
       cooperative agreement between the U.S. Fish and Wildlife Service and a State
       agency having control over wildlife resources pursuant to section 4 of the Fish
       and Wildlife Coordination Act (16 U.S.C. [§] 664 . . .).

                                              * * *

       Refuge management activity means an activity conducted by the Service or a
       Service-authorized agent to fulfill one or more purposes of the national wildlife
       refuge, or the National Wildlife Refuge System mission. Service-authorized
       agents include contractors, cooperating agencies, cooperating associations, refuge
       support groups, and volunteers.

       Refuge management economic activity means a refuge management activity on a
       national wildlife refuge which results in generation of a commodity which is or
       can be sold for income or revenue or traded for goods or services. Examples
       include: Farming, grazing, haying, timber harvesting, and trapping.

50 C.F.R. § 25.12 (emphases added).
       38
            This regulation provides:

       Cooperative agreements with persons for crop cultivation, haying, grazing, or the
       harvest of vegetative products, including plantlife, growing with or without
       cultivation on wildlife refuge areas may be executed on a share-in-kind basis
       when such agreements are in aid of or benefit to the wildlife management of the
       area.

50 C.F.R. § 29.2.



                                                46
term “cooperative agreements” that concerns “cooperative agreements” with persons, not State
agencies or organizations.

         Of course, the fact that the Government’s interpretation is the product of a post hoc
litigation strategy has not escaped the court. See State Farm, 463 U.S. at 50 (“[C]ourts may not
accept . . . counsel’s post hoc rationalizations for agency action. . . . It is well-established that an
agency’s action must be upheld, if at all, on the basis articulated by the agency itself.” (citation
omitted)); see also Sursley v. Peake, 551 F.3d 1351, 1355 (Fed. Cir. 2009) (rejecting the
Government’s proposed interpretation, in part, because a regulatory change did not reflect a
“deliberate effort to interpret the statute’s meaning” and holding that the relevant inquiry is one
of statutory interpretation, not deference to an agency interpretation). In promulgating 50
C.F.R. § 29.2, the Service did not mention any of the alternative definitions proffered by the
Government, nor suggest that the statutory phrase “public or private agencies or organizations”
was ambiguous or even relevant to section 29.2. See 25 FED. REG. at 8,397.

       For these reasons, the court has determined that the 1958 Act is not ambiguous and, in
any event, 50 C.F.R. § 29.2 cannot exempt the Service from the competitive requirements of the
CICA.

                       f.      The Service Failed To Comply With Regulatory Authority.

                               i.      Standard Of Review.

      In Hamlet v. United States, 63 F.3d 1097 (Fed. Cir. 1995), the United States Court of
Appeals for the Federal Circuit held that,

       regardless of whether a provision of an agency’s personnel manual or handbook
       was published or promulgated under the standards set out in the APA, such
       provision is a regulation entitled to the force and effect of law[,] if (1) the
       promulgating agency was vested with the authority to create such a regulation; (2)
       the promulgating agency conformed to all procedural requirements, if any, in
       promulgating the regulation; (3) the promulgating agency intended the provision
       to establish a binding rule; and (4) the provision does not contravene a statute. In
       determining whether a provision was intended to be binding, the court should
       consider (a) whether the language of the provision is mandatory or advisory; (b)
       whether the provision is “substantive” or “interpretive”; (c) the context in which
       the provision was promulgated; and (d) any other extrinsic evidence of intent.

Id. at 1103–05 (emphasis added) (analyzing whether an agency’s personnel manual could
constitute a “regulation of an executive department” within the meaning of 28
U.S.C. § 1491(a)(1)).

        In addition, in the bid protest context, the United States Court of Federal Claims only
may set aside a bid award if an agency’s failure to comply with regulatory guidance prejudices a
bidder. See Lincoln Servs., Ltd. v. United States, 230 Ct. Cl. 416 (1982) (“In these
circumstances, the failure [of the agency] to follow the [agency’s] manual did not prejudice
plaintiff and did not have a substantial impact on the ultimate award.”); see also Emery



                                                  47
Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1088 (Fed. Cir. 2001) (holding that the
agency’s alleged violation of a purchasing manual was not prejudicial).

                              ii.    The Service’s Failure To Comply With The
                                     Departmental Manual Was Arbitrary And Capricious
                                     And Prejudiced Plaintiff.

       The Departmental Manual explicitly states:

       Competition in making awards through cooperative agreements is strongly
       encouraged and is expected in awarding discretionary grants, unless otherwise
       directed by Congress. In all cases, bureaus and offices are required to make
       awards based on the merits in accordance with the law.

505 DM § 2.13 (2008) (emphases added).

        The Departmental Manual then sets forth the procedures required to implement Interior’s
goal to award cooperative agreements based on merit:

       If consistent with the statute authorizing the program, bureaus and offices will
       develop procedures which provide for an independent objective evaluation of the
       [cooperative farming agreement] applications prior to award. In developing the
       procedures, consideration will be given to ensuring that applications are reviewed
       and evaluated by qualified reviewers; applications are scored on the basis of
       announced criteria; applications are ranked; and funding determinations made.

505 DM § 2.16(A) (2008) (emphasis added).

        As to the first Hamlet factor, Interior had authority to issue the Departmental Manual.
See 5 U.S.C. § 552(a)(2)(C) (authorizing federal agencies to issue “administrative staff manuals
and instructions to staff”). As to the second factor, nothing in the Administrative Record
indicates that Interior’s publication of the Departmental Manual did not conform to the requisite
procedural requirements, and the parties have not argued otherwise. 39 As to the third factor, the
Departmental Manual states, “[b]ureaus and offices must comply with the provisions of the
DM,” reflecting that Interior intended this document to be binding authority. See 011
DM § 1.2(B) (2001). Therefore, the Departmental Manual is a binding agency directive, not just
a statement of policy. See Hamlet, 63 F.3d at 1105. As to the fourth factor, the competitive
requirements set forth in the Departmental Manual do not contravene a statute; to the contrary,
they further the competitive objectives of the CICA.

        Consequently, both of the above-referenced sections of the Departmental Manual require
that the Service conduct an objective review of the merits and rank qualified applicants, before

       39
           The Departmental Manual is published online. See Labat-Anderson, Inc. v. United
States, 42 Fed. Cl. 806, 839 (1999) (noting that promulgation requires “some act of publication,
i.e., dissemination to the public” (referencing WEBSTER’S THIRD NEW INT’L DICTIONARY 1816
(1976)).



                                               48
the cooperative farming agreements were awarded. The Service’s reliance on a priority system,
in this case, however, is inapposite to “an independent objective evaluation.” 505 DM § 2.16(A)
(2008). In addition, the Administrative Record does not contain any public notice of the
cooperative farming program in the McNary or Umatilla Refuges for either 2013 or 2014 or the
Service’s criteria for evaluating applicants. AR 109 (stating that the Service “had not put out a
public offering” for the 2013 agreements). The only reason Mr. Hymas was considered in 2014
was at the direction of the court. Dkt. No. 38 (transcript of the 6/24/13 Status Conference). 40
Moreover, the priority system, by the Service’s admission, is not a competitive merits-based
system. See 5 RM § 17.11(A)(1) (1986) (distinguishing the priority system from a competitive
bidding system). Therefore, the Service’s priority-based selection system did not comply with
the Departmental Manual. Finally, the conspicuous absence of any reference to the
Departmental Manual in the Administrative Record evidences that the Service did not consider it
in conducting the cooperative farming selection process either in 2013 or 2014.

         For these reasons, the court has determined that the Service’s failure to comply with the
Departmental Manual was arbitrary and capricious. See Hamlet, 63 F.3d at 1105 (setting forth
the test for determining whether an agency manual “is a regulation entitled to the force and effect
of law”); see also 5 U.S.C. § 706(a)(2) (requiring a court to hold unlawful agency action that is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”
(emphasis added)). That failure prejudiced Mr. Hymas and had a “substantial impact on the
ultimate award” of cooperative farming agreements, because if the Departmental Manual was
followed by the Service, his proposal would have been ranked, without being automatically
discarded, because he was not an incumbent or prior farmer-cooperator. Lincoln Servs.,
Ltd. v. United States, 230 Ct. Cl. 416, 428 (1982) (concluding that “the failure [of the agency] to
follow the [agency’s] manual did not prejudice plaintiff and did not have a substantial impact on
the ultimate award”); see also United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268
(1954) (allowing a petitioner to challenge a denial of his application for suspension of
deportation, where the Board of Immigration Appeals “fail[ed] to exercise its own discretion,
contrary to existing valid regulations”); Battle v. FAA, 393 F.3d 1330, 1336 (D.C. Cir. 2005)
(“Accardi has come to stand for the proposition that agencies may not violate their own rules and
regulations to the prejudice of others.”).

                              iii.    The Service’s Reliance On The Refuge Manual Was
                                      Arbitrary, Capricious, Lacked A Rational Basis, And
                                      Prejudiced Plaintiff.

      The Government does not dispute that the Service relied on sections 4 and 17 of the
Refuge Manual in implementing the priority system in 2013 and 2014. Gov’t Mot. 33; AR 123–

       40
           On November 21, 2013, the Service requested certain information from Mr. Hymas,
but not from other potential cooperators. Compare AR 198 (letter to Mr. Hymas), with AR 197
(letter to Mr. Fredrickson, a prior cooperator). Prior to that time, the Service, however, did not
indicate what standard would be used to evaluate his application. In fact, the Service did not
consider Mr. Hymas’s farming experience or ability to supply necessary farming equipment.
Compare AR 198, with AR 212 (post-award 1/17/14 Stenvall Statement explaining that
selections were made solely on the basis of an applicant’s status as a prior farmer-cooperator).



                                                49
78 (Refuge Manual); AR 73 (“Cooperators are selected in accordance with Refuge [M]anual
guidelines[.]”); AR 89–92 (identifying the priority system in the Refuge Manual as the method
of selection for the 2013 farming season); AR 190 (“[T]he only criterion for selecting
cooperators [for the 2014 farming season] is their capability to perform the requirements of the
cooperative farming agreement. Considerations relevant to their capability to perform. . . . are
encompassed in the priority system outlined in 5 RM [§] 17.11(A)(1)(c).”). But, the Refuge
Manual was not in effect when the Service conducted the selection process for the 2013 and
2014 farming seasons. See Director’s Order No. 42 (revoking the Refuge Manual, effective
September 30, 1993). Although a series of amendments extended that revocation date, the last
amendment to do so prior to the Service’s selection process was the December 31, 2006
Amendment 14, that extended the revocation date to December 31, 2007. Therefore, no Service
policy authorized the use of a priority selection process in 2013 and 2014. See Wos v. E.M.A. ex
rel. Johnson, __ U.S. __, 133 S. Ct. 1391, 1402 (2013) (holding that two documents “lack
persuasive force,” in part, because they “no longer reflect the agency’s position”); cf. 516
FW § 6.4 (2014) (requiring competition, unless certain provisions, listed at 516 FW § 6.7 tbl. 6-
3, are met);supra note 28 (describing the provisions listed at 516 FW § 6.7 tbl. 6-3).

       The Government counters that the post-Complaint February 26, 2014 Amendment 15 to
the Director’s Order No. 42 retroactively reinstated the Refuge Manual and authorized the
Service’s use of a priority selection process in 2013 and 2014. Gov’t Mot. 32–33. The court
disagrees. Whatever legal effect Amendment 15 has on the Refuge Manual after February 26,
2014, it had none on Service actions that occurred before the amendment.                         See
Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (holding that the “threshold
question” in determining the validity of a retroactive rule is whether the relevant statute
“authorizes retroactive rulemaking”); see also id. (“Retroactivity is not favored in the law.”); see
also Yakima Valley Cablevision, Inc. v. FCC, 794 F.2d 737, 745 (D.C. Cir. 1986) (“[C]ourts
have long hesitated to permit retroactive rulemaking and have noted its troubling nature.”).
Instead, in this case, the Service attempted to justify a priority system based on the Refuge
Manual, which was not published 41 and was superseded by the Departmental and Service
Manuals. 42 In other words, the Service “change[d] the rules of the game’” by retroactively


       41
          In fact, Mr. Hymas had to file a Freedom of Information Act request in order to obtain
a copy of the Refuge Manual. Pl. MJAR 15. The Service has made two public statements about
the Refuge Manual. One, that the Refuge Manual was revoked. See Tom Worthington, U.S.
Fish & Wildlife Serv., Two Dogs, One Cat and Three Refuge Manuals, available at
http://www.fws.gov/refuges/refugeupdate/marchapril_2011/refugemanuals.html (“Today, the
Service Manual has replaced the Refuge Manual[.]”). Second, on February 28, 2014, the Service
published a “[c]orrection” to Mr. Worthington’s article, indicating that “[t]he Refuge
Manual . . . [has] not been revoked.” Id.
       42
           The court need not, and does not, reach the issue of whether Amendment 15 lawfully
reinstated the Refuge Manual, but to the extent it has any prospective vitality, the court observes
that the Service Manual places significant restrictions on a Director’s Orders:

       Director’s Orders are limited to temporary delegations of authority, emergency
       directives, special assignments, and initial policy or guidance for evolving


                                                50
resurrecting the Refuge Manual. See Bowen, 488 U.S. at 220 (Scalia, J., concurring) (“A rule
that has unreasonable secondary retroactivity—for example, altering future regulation in a
manner that makes worthless substantial past investment incurred in reliance upon the prior
rule—may for that reason be ‘arbitrary’ or ‘capricious,’ see 5 U.S.C. § 706, and thus invalid.”).

         Assuming arguendo, the Refuge Manual properly was re-instated, the principal reason
used by the Service to justify its use of a priority system, was that “[o]ne of our main concerns in
selection of cooperators is that the cooperator may be unable to complete the project (due to
illness, bankruptcy, or lack of necessary equipment or skill).” AR 190. But, the Service did not
ascertain, much less consider, any information about a farmer’s ongoing ability to complete the
project, such as financial data, health record, or ability to obtain required equipment. Compare
AR 194–97 (allowing prior cooperators to express interest in continued participation without
submitting any questionnaire), with AR 198 (requesting that Mr. Hymas submit a response that
includes “a written description of . . . work experience in farming” and “statement of capability
demonstrating [his] ability to supply irrigation systems and farm equipment”). As such, the
Service also failed to comply with the requirement of the APA that “the agency must examine
the relevant data and articulate a satisfactory explanation for its action including a ‘rational
connection between the facts found and the choice made.’” State Farm, 463 U.S. at 43 (citation
omitted). The priority system, as set forth in the Refuge Manual, does not consider prior
performance; instead, incumbent or prior cooperators automatically receive priority over all
other applicants. See 5 RM § 17.11A(1)(c)(1) (1986) (allowing the Service to refuse a renewal
of a cooperative farming agreement only for “[n]on-compliance” with the “provisions of the
previous permit or agreement”). Relying on the priority system that ensures an incumbent or
prior farmer-cooperator will continue to be awarded cooperative farming agreements in near-
perpetuity, was arbitrary, capricious, lacked a rational basis and prejudiced Mr. Hymas, as well
as other potential farmer-cooperators.

      For these reasons, the court has determined that the Service’s reliance on the Refuge
Manual was arbitrary, capricious, lacked a rational basis, and prejudiced Mr. Hymas.

       C.      A Permanent Injunction Is Warranted.

               1.      Plaintiff’s Argument.

       The February 5, 2014 Amended Complaint requests, among other relief, that the court:

       Enter a permanent injunction that orders Defendant to rescind the multi-year
       farming contracts awarded in 2013 and open the related fields to competitive
       bidding in 2014;

       activities. Originating offices must convert Director’s Orders as soon as possible
       into the Service Manual.

010 FW § 1.5(B) (2011, as amended 3/6/14); see also 012 FW § 1 (2006) (“Preparation and
Issuance of Director’s Orders”); see also Bowen, 488 U.S. at 208–09 (“Even where some
substantial justification for retroactive rulemaking is presented, courts should be reluctant to find
such authority absent an express statutory grant.”).



                                                 51
       Enter a permanent injunction that orders Defendant to award Plaintiff a contract to
       farm Library Field, Field 3 and Field 4;

       Enter a permanent injunction that prohibits Defendant from awarding farming
       contracts until [the Service] conducts a procurement that complies with the
       Competition in Contracting Act and FGCAA[.]

Am. Compl. at 12; see also Pl. MJAR 20 (reiterating the previous requests and also requesting
that the court cancel the Service’s 2014 cooperator selections and re-do the selection process).

        Without injunctive relief, Mr. Hymas claims that he and other similarly-situated farmers
will be unable to compete for cooperative farming contracts in the Umatilla and McNary
Refuges. Pl. Resp. 19. Although the Government points to critical planting deadlines, the
Service could meet these deadlines through either force account farming or contract farming
(using third parties). Nor should the existence of multi-year agreements be allowed to frustrate
injunctive relief; “[t]hat the [G]overnment may be exposed to breach of contract claims by
existing cooperators as a result of its unlawful conduct is not a reason to deny injunctive relief.”
Pl. Resp. 20. At a minimum, the court should require full and open competition for the 2015
farming season and in the future to prevent the Service “from repeatedly avoiding the
consequences of unlawful conduct by delaying its award of farming contracts until the eve of the
planting season.” Pl. Resp. 20.

               2.      The Government’s Response And Cross-Motion.

        The Government responds that Mr. Hymas, as a disappointed bidder, has “no right . . . to
have the contract awarded to [him] in the event the . . . court finds illegality in the award of the
contract.” Gov’t Mot. 45 (quoting Parcel 49C Ltd. P’ship v. United States, 31 F.3d 1147, 1152–
53 (Fed. Cir. 1994) (internal quotations omitted)). In any event, “a movant is confronted by a
more substantial burden of proof when it seeks injunctive relief which would interfere with and
infringe upon governmental operations if granted.” Gov’t Mot. 45–46 (citing Avtel Servs.,
Inc. v. United States, 70 Fed. Cl. 173, 226 (2005) (finding that “only . . . extremely limited
circumstances” warrant enjoining performance). Moreover, using third parties or Service
personnel to conduct preparatory work to meet critical deadlines is not possible, because of
current funding constraints. Gov’t Reply 10.

        Nor can Plaintiff meet the four elements that a court must consider when deciding to
issue a permanent injunction. Gov’t Mot. 46 (citing PGBA, LLC v. United States, 389 F.3d 1219
1228–29 (Fed. Cir. 2004) (listing the four elements)). First, Plaintiff cannot succeed on the
merits, because the Service did not abuse its discretion or act without rational basis in the award
of the cooperative farming agreements. Gov’t Mot. 46.

       Second, Plaintiff does not have any competitive injury, because the Service “fairly
considered Mr. Hymas for each of the [cooperative farming agreements] at issue.” Gov’t Mot.
46–47 (citing AR 85–88 (2013 Stenvall Statement); AR 89–92 (2013 Glass Statement); AR 212–
15 (2014 Stenvall Statement)).




                                                52
       Third, “the compelling and overriding interest of the United States and the public in
providing critical food assistance to migratory birds” outweighs any harm to Mr. Hymas. Gov’t
Mot. 47. As to an injunction for 2014 planting season, Mr. Glass declared:

       If an injunction were to prevent . . . cooperating farmers . . . from
       providing . . . irrigation for more than one week, due to the biological realities of
       farming, it is likely that no corn, wheat, barley, or alfalfa could be successfully
       grown in 2014[.]

       In light of current funding constraints, the [Service] does not have the ability to
       satisfy the critical need of wildlife for this food except through the use of
       agreements, such as cooperative farming agreements, that do not require
       expenditure of public funds.

3/7/14 Glass Decl. ¶¶ 9–10; see also Gov’t Mot. 47–48 (discussing the 3/7/14 Glass
Declaration). Insufficient time remains to engage in full and open competition for the 2014
farming season. Gov’t Reply 10.

        Fourth, any injunction that affects multi-year cooperative farming agreements “would
likely frustrate the purpose of the agreements by impairing the ability of the cooperators to
recoup their investment costs,” which weighs against injunctive relief. Gov’t Mot. 49 (quoting
Glass Decl. ¶ 11).

        Finally, the court should not consider injunctive relief as to future farming cycles,
because the Service “has not made any final decisions with respect to future farming cycles and
the issue of future farming cycles is not before the [c]ourt.” Gov’t Reply 11.

               3.      The Court’s Resolution.

       As a matter of law, the court is required to consider and balance four factors in
determining whether to issue an injunction:

       (1) whether . . . the plaintiff has succeeded on the merits of the case;

       (2) whether the plaintiff will suffer irreparable harm if the court withholds
           injunctive relief;

       (3) whether the balance of hardships to the respective parties favors the grant of
           injunctive relief; and

       (4) whether it is in the public interest to grant injunctive relief.

PGBA, LLC, 389 F.3d at 1228–29; see also FMC Corp. v. United States, 3 F.3d 424, 427 (Fed.
Cir. 1993) (“No one factor, taken individually, is necessarily dispositive . . . . [T]he weakness of
the showing regarding one factor may be overborne by the strength of the others.”).




                                                  53
       The court agrees with the Government that an injunction awarding one or more
cooperative farming agreements to Mr. Hymas is not a proper remedy. Therefore, the request “to
award Mr. Hymas a contract to farm Library Field, Field 3 and Field 4,” Pl. MJAR 20, is denied.

        As to the first factor, as discussed herein, the court has determined that Mr. Hymas has
succeeded on the merits, by demonstrating that the Service’s use of a noncompetitive selection
process for the cooperative farming agreements in 2013 and 2014 violated two federal
procurement laws, as well as the APA. See PGBA, 389 F.3d at 1229 (quoting Amoco Prod.
Co. v. Village of Gambell, Alaska, 480 U.S. 531, 546 n.12 (1987) (“The standard for a
preliminary injunction is essentially the same as for a permanent injunction with the exception
that the plaintiff must show a likelihood of success on the merits rather than actual success.”)).

        As to the second factor, the court has determined that Mr. Hymas will be irreparably
harmed by the lost opportunity to compete for cooperative farming agreements for the next five
years, without injunctive relief requiring the Service to comply with the CICA, FGCAA, and
APA. See PGBA, 389 F.3d at 1231 (noting that “evidence of lost profits” may demonstrate
irreparable harm); United Payors & United Providers Health Servs., Inc. v. United States, 55
Fed. Cl. 323, 333 (2003) (“[L]ost opportunity to compete on a level playing field for a contract,
has been found sufficient to prove irreparable harm.”); see also Labat-Anderson Inc. v. United
States, 50 Fed. Cl. 99, 110 (2001) (“Lost profits and a lost opportunity to compete constitute
irreparable injury.”).

        As to the third factor, although the Service may be inconvenienced by having to
implement a competitive selection process for the 2015 farming season and beyond, this is a
problem the Service brought on itself. See Parcel 49C Ltd. P’ship, 31 F.3d at 1152–53 (“[A]n
injunction to halt the contract award [is] the correct remedy for illegality in the bid process.”
(citing CACI, Inc.-Fed. v. United States, 719 F.2d 1567, 1575 (Fed. Cir. 1983)); see also Cohen
Fin. Servs. v. United States, 110 Fed. Cl. 267, 289 (2013) (explaining that hardship “wholly
attributable” to the Government’s “unexplained failure [to follow its regulations]” does not
preclude issuance of injunctive relief). The court is mindful that an injunction setting aside the
five-year cooperative farming agreements entered into in 2014, may well result in the Service
having to deal with collateral contract claims, but the Service’s exposure is the result of willful
unlawful conduct that it should have corrected in 2014—as the court expected the Service to do.
See Turner Constr. Co. v. United States, 645 F.3d 1377, 1388 (Fed. Cir. 2011) (“Injunctive relief
is appropriate if it ‘enjoin[s] the illegal action and return[s] the contract award process to the
status quo ante.’” (quoting Parcel 49C Ltd. P’ship, 31 F.3d at 1153)).

        As to the fourth factor, the court also is mindful that the public interest weighs against
potential disruption of supply of migratory bird and wildlife food. See 16 U.S.C. § 701 (“The
duties and powers of the Department of the Interior include the preservation, distribution,
introduction, and restoration of game birds and other wild birds.”); see also Exec. Order No.
13,186 (Jan. 10, 2001) (“Responsibilities of Federal Agencies to Protect Migratory Birds”). The
Service, however, has sufficient time to establish a new procurement process for 2015 and
beyond particularly since, in prior years, this process did not commence until the late fall and
cooperative farming agreements were not entered into until the following April.
      Finally, the court has not overlooked the fact that the Service attempted on two occasions
to “paper over” its failure to provide a rational basis for awarding cooperative farming


                                                54
agreements in 2013 and 2014. This conduct alone would justify injunctive relief in this case,
because the public interest is served by “honest, open, and fair competition” and “the
procurement process is compromised whenever an agency abuses its discretion in evaluating a
contractor’s bid.” PGBA, LLC v. United States, 57 Fed. Cl. 655, 663 (2003).

       For these reasons, it is ordered that,

       the United States of America, the United States Department of the Interior, the
       Fish and Wildlife Service, and their officers, agents, employees, and
       representatives are enjoined from entering into any cooperative farming
       agreements or other contractual vehicles concerning the McNary and Umatilla
       National Wildlife Refuges for the 2015 farming season or thereafter, unless and
       until the selection process and award comply with the CICA, FGCAA, and the
       APA.
Cooperator          Company        Start Date       End Date        Fields            Administrative
                                                                                      Record
                                                                                      Citation
Lonnie Blasdel      GLB Farms      Mar. 19, 2013    Mar. 30, 2016   McNary            AR 26
                                                                    Library Field,
                                                                    Fields 3a–d,
                                                                    7a–c
Larry Pierce        N/A            Mar. 1, 2013     Feb. 28, 2017   McNary            AR 21
                                                                    Pierce Field
Vern Frederickson   Frederickson   Feb. 25, 2014    Jan. 1, 2019    Umatilla          Dkt. No. 41
                    Farms                                           McCormack
                                                                    Fields C-1
                                                                    through C-5
Jody Maddox         N/A            Mar. 1, 2014     Mar. 1, 2019    Umatilla          Dkt. No. 41
                                                                    Whitcomb
                                                                    Fields C-1
                                                                    through C-6
John Peterson       N/A            Mar. 15, 2014    Mar. 15, 2019   McNary            Dkt. No. 41
                                                                    Fields 5, 6a–c,
                                                                    8
Doug Strebin        Basin          Mar. 15, 2014    Mar. 15, 2019   McNary            Dkt. No. 41
                    Farming                                         Wallula Field
                    LLC                                             1

V.     CONCLUSION.

        For these reasons, the Government’s March 7, 2014 Motion To Dismiss is denied.
Plaintiff’s February 17, 2014 Motion For Judgment On The Administrative Record is granted in-
part and denied in-part. The Government’s March 7, 2014 Cross-Motion For Judgment On The
Administrative Record is denied.

       In addition, at the conclusion of the 2014 farming season, the Service will terminate the
cooperative farming agreements identified above.



                                                   55
        On or before October 24, 2014, Plaintiff may submit a motion for bid and proposal costs.
See Lion Raisins, Inc. v. United States, 52 Fed. Cl. 629, 630–31 (2002) (“To be awarded bid and
proposal costs in a successful bid protest action, the contractor . . . must show those bid and
proposal costs to be allocable and reasonable.” (citing Coflexip & Servs., Inc. v. United States,
961 F.2d 951, 953 (Fed. Cir. 1992) (“Recovery can be obtained [for proposal preparation costs]
if the government breached an implied-in-fact contract to treat a bid honestly and fairly, in which
case its conduct was arbitrary and capricious toward the bidder-claimant.” (internal quotations
omitted)))). At the appropriate time, Plaintiff also may file a motion for attorney fees, pursuant
to the Equal Access to Justice Act, 28 U.S.C. § 2412, if applicable.

       IT IS SO ORDERED.
                                                     s/ Susan G. Braden
                                                     SUSAN G. BRADEN
                                                     Judge




                                                56
Court Exhibit 1: McNary And Umatilla Refuges: Overview.




Source: McNary & Umatilla CCP, Map 1.




                                        57
Court Exhibit 2: Umatilla Refuge.




Source: U.S. Fish & Wildlife Serv., Umatilla National Wildlife Refuge Hunting Regulations
(2013), http://www.fws.gov/mcriver/regulations/documents/umatilla-boardman-etc.pdf.




                                           58
Court Exhibit 3: McNary Refuge.




Source: U.S. Fish & Wildlife Serv., McNary National Wildlife Refuge Fishing Regulations
(2013), http://www.fws.gov/mcriver/regulations/documents/mcnary-fishing.pdf.




                                          59
Court Exhibit 4: McNary Refuge, All Fields.




Source: Pl. MJAR App’x 564.




                                              60
Court Exhibit 5: McNary Refuge, Wallula Unit Field 1.




Source: AR 5.




                                          61
Court Exhibit 6: McNary Refuge, Burbank Slough Unit Fields 5, 6, and 8.




Source: U.S. Fish & Wildlife Serv., McNary National Wildlife Refuge Hunting Regulations
(2013), http://www.fws.gov/mcriver/regulations/documents/mcnary-headquarters.pdf.




                                          62
Court Exhibit 7: Umatilla Refuge, McCormack Unit Fields 1–5.




Source: AR 10.




                                          63
Court Exhibit 8: Umatilla Refuge, Whitfield Unit Fields 1–6.




Source: AR 15.




                                            64
