                                                                             [PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                       No. 10-10279                 FEB 14, 2011
                                                                     JOHN LEY
                                 ________________________              CLERK

                             D.C. Docket No. 2:08-cv-00126-RWS

FORSYTH COUNTY,
a political subdivision of the State of Georgia,

lllllllllllllllllllll                                          Plaintiff - Appellant,

    versus

UNITED STATES ARMY CORPS OF ENGINEERS,
COLONEL BYRON G. JORNS,
Mobile District Engineer, in his official capacity,
BRIGADIER GENERAL JOSEPH SCHROEDEL,
South Atlantic Division Commander, in his official capacity,
MAJOR GENERAL DON T. RILEY,
Director of Civil Works, in his official capacity,
LIEUTENANT GENERAL ROBERT L. VAN ANTWERP,
Commander and Chief of Engineers, in his official capacity, et al.,

lllllllllllllllllllll                                          Defendants - Appellees.

                                ________________________

                          Appeal from the United States District Court
                             for the Northern District of Georgia
                                ________________________

                                     (February 14, 2011)
Before WILSON and PRYOR, Circuit Judges, and BUCKLEW,* District Judge.

PRYOR, Circuit Judge:

       This appeal from the denial of a preliminary injunction requires us to

determine whether an evaluation of competing proposals for the lease of Bethel

Park on Lake Sydney Lanier in Forsyth County, Georgia, by the United States

Army Corps of Engineers is subject to a right of first refusal for a local

government and, if not, whether the weight accorded to a preference for the lease

is otherwise subject to judicial review under the Administrative Procedure Act, 5

U.S.C. § 551 et seq. The Flood Control Act of 1944 permits the Corps to grant

leases of public parks and recreational facilities at water resource development

projects on terms and for purposes that it determines are “reasonable in the public

interest” and requires the Corps to give a preference to “local governmental

agencies,” among others. 16 U.S.C. § 460d. Forsyth County, Georgia, and the

Young Men’s Christian Association of Greater Atlanta submitted competing

proposals to lease Bethel Park. After the Corps evaluated each proposal, it

awarded the lease to the Association because the Corps determined that the award

would better serve the public interest to a degree sufficient to overcome the


       *
         Honorable Susan C. Bucklew, United States District Judge for the Middle District of
Florida, sitting by designation.


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preference owed to the County under section 460d. The County filed a complaint

that the Corps had violated the preference clause in section 460d and moved for a

preliminary injunction to prevent the Corps from leasing the park to the

Association. The district court denied the motion on the ground that the County

was unlikely to succeed on the merits of its complaint. Because section 460d does

not create a right of first refusal for preference entities and the weight accorded to

the preference for a lease is “committed to agency discretion by law,” 5 U.S.C. §

701(a)(2), and is not subject to judicial review, we affirm.

                                I. BACKGROUND

      The Flood Control Act of 1944 empowers “[t]he Chief of Engineers, under

the supervision of the Secretary of the Army, . . . to construct, maintain, and

operate public park and recreational facilities at water resource development

projects under the control of the Department of the Army.” 16 U.S.C. § 460d.

The Act also empowers the Secretary of the Army “to grant leases of lands,

including structures or facilities thereon, at water resource development projects

for such periods, and upon such terms and for such purposes as he may deem

reasonable in the public interest.” Id. The Act conditions the grant of a lease on

several additional considerations, one of which is a preference for certain entities:

      [P]reference shall be given to federally recognized Indian tribes and
      Federal, State, or local governmental agencies, and licenses or leases
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      where appropriate, may be granted without monetary considerations, to
      such Indian tribes or agencies for the use of all or any portion of a
      project area for any public purpose, when the Secretary of the Army
      determines such action to be in the public interest, and for such periods
      of time and upon such conditions as he may find advisable[.]

Id. The Secretary of the Army has also promulgated a regulation that mirrors the

language of section 460d:

      The Secretary of the Army is authorized to grant leases of lands,
      including structures or facilities thereon, in reservoir areas for such
      periods and upon such terms as he may deem reasonable[.] . . .
      [P]reference shall be given to Federal, State, or local governmental
      agencies, and licenses may be granted without monetary considerations
      to such agencies for the use of all or any portion of a reservoir area,
      when the Secretary of the Army determines such actions to be in the
      public interest, and for such periods of time and upon such conditions
      as he may find advisable.

33 C.F.R. § 211.6(a)(2).

      Under these grants of authority, the United States Army Corps of Engineers

administers 38 parks and recreational facilities on Lake Sidney Lanier in northern

Georgia. Over time, the Corps has also granted 44 leases for parks and

recreational facilities around the lake to various entities, public and private. These

grants consist of fourteen leases to local governmental entities, including three to

Forsyth County, Georgia; ten leases to the State of Georgia; eight leases to private

concessionaires; and twelve leases to private organizations, including the Boys




                                          4
Club, the Girl Scouts, the Methodist Church, the American Legion, and the Young

Men’s Christian Association.

      One of the parks administered by the Corps is Bethel Park, a day-use park

that sits by Lake Lanier on about 62 acres. Of the 38 parks that the Corps operated

in 2008, Bethel Park ranked 37th in terms of public usage. In March 2003, the

Young Men’s Christian Association of Greater Atlanta approached the Corps to

discuss the possibility of leasing more property on Lake Lanier for a summer

camp. The Association submitted a formal proposal to the Corps to lease Bethel

Park in 2004, and supplemented that proposal in 2005 with a proposed master plan

that detailed its development plans. The Association proposed to develop Bethel

Park to provide overnight and day-use facilities for campers, including cabins, a

dining hall, active recreation areas, a multi-purpose court, outdoor amphitheaters

and classrooms, hiking trails, a marina, a fishing pier, and a beach area.

       Forsyth County also sought leases from the Corps. In 2004, for example,

the County emailed the Corps to inquire about the possibility of leasing property

around Lake Lanier. As a result of this inquiry and further discussions, the Corps

leased Young Deer and Charleston Parks to the County in March 2005.

      In December 2005, the Corps issued a “Recreation Development Policy for

Outgranted Corps Land,” a new policy governing the evaluation of proposals for


                                          5
recreational development of lands and waters at water resource development

projects. The new policy established the following several criteria that a district

team of Corps employees must follow when it “evaluate[s] requests for recreation

development”:

      Consistent with project purposes; Reasonable connection to the project’s
      natural and other resources; Consistent with land use classifications and
      resource management objectives in the Project Master Plan (or
      supplement thereto); In the public interest; Justified by public demand
      . . . ; Economically viable . . . ; Meets the recreation demands created by
      the project itself while balancing natural resources requirements.

      In April 2006, in a letter to the Corps, the County sought to lease 15 parks

administered by the Corps, including Bethel Park. The County acknowledged that

it was aware that the Corps was negotiating a lease of Bethel Park with “other

entities,” but the County stated that a “local government would have ‘first option’

should the Corps ever decide to lease these parks out.” The Corps agreed to

discuss leasing several of the 15 parks to the County, but informed the County that

it “remain[ed] committed to . . . the [Association] . . . for the operation and

maintenance of [Bethel Park]. . . . [D]iscussions with the [Association] have been

ongoing since early 2003.” Later that month, the Corps made available to the

public and requested comments on a draft Environmental Assessment and Master

Development Plan for Bethel Park prepared by the Association. The County

submitted a comment in which it argued that it “was not given a right of first

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refusal or ‘preference’ with respect to acquiring Bethel Park as required by federal

law.”

        In September 2006, the County renewed its request to lease Bethel Park

from the Corps. The Corps invited the County to submit a written proposal with

supporting documentation, including a development plan and a market feasibility

study. The Corps also invited the Association to submit a renewed proposal with

supporting documentation. In February 2007, the County and the Association

submitted their proposals to the Corps. The proposal of the Association

essentially mirrored its previous proposal. The County proposed an overnight and

day-use facility, with camping sites for recreational vehicles and tent campers, a

day-use area, a boat ramp and trailer parking area, a 90-space parking area,

comfort facilities, an environmental education area, a beach area, and walking

trails. The Corps evaluated both proposals and released a new Environmental

Assessment for public comment in January 2008 that discussed the environmental

impacts of leasing Bethel Park “to a yet undetermined non-Federal entity.” The

Corps received over 4,900 comments on the Assessment, most of which were

letters of support for either the Association or the County.

        On June 5, 2008, the Corps announced in a news release that it planned to

lease Bethel Park to the Association. The Corps explained that it had “conducted


                                          7
an objective and very detailed evaluation of the two proposals to determine which

one was in the best interest of the public.” The Corps assigned each of the

proposals a scaled score for specific categories to ensure that it “carefully followed

[its] mandated seven evaluation criteria” and determined that the proposal of the

Association “ranked significantly higher in three of the evaluated areas[:] . . .

public interest, market study, and feasibility.” Overall, the Corps awarded 45

points to the Association and 32 points to the County; these totals included an

award of 37 points to the Association and an award of 30 points to the County on

the basis of whether “the proposal [was] in the public interest.” The Corps

concluded that the proposal of the County “only replicate[d] and add[ed] to similar

facilities already located within a 25-mile radius of the site location,” but the

proposal of the Association “offer[ed] relatively unique facilities and programs for

Lake Lanier, with a broad array of activities.” The Corps also stated that the

County had not explained how it intended to fund its proposal at a cost of $4.4

million. The Association, on the other hand, provided “a detailed plan on [$20

million of] capital funding for the facilities” and “substantiate[d] [its] figures and

projections based on data from ongoing operations at similar [Association]

facilities.” The Corps was confident that the proposal of the Association would

provide “a long term benefit to the public in the region.” The Corps provided the


                                           8
text of section 460d in its entirety in the evaluation and concluded that “due to the

factors set out above, the proposal by the [Association] should be considered in

the best interest of the public to a degree sufficient to overcome the preference set

out in the statute.”

      The County filed a complaint and a motion for a preliminary injunction in

the district court to prevent the Corps from leasing Bethel Park to the Association.

The County alleged, in part, that the Corps had violated the preference

requirement for local governmental agencies in section 460d. Although the

Association executed a lease and forwarded it to the Corps, the Corps refused to

sign the lease while it negotiated with the County. In the light of the settlement

negotiations between the Corps and the County, the district court denied the

motion of the County for a preliminary injunction with a right to refile. The

district court also denied the motion of the Association to intervene, in part

because the Association had failed to provide “any evidence of a written

agreement or other contractual privity in existence between [the Association] and

the Corps regarding . . . Bethel Park.” After its negotiations with the County were

unsuccessful, the Corps executed a lease for Bethel Park with the Association on

September 22, 2009, and the district court permitted the Association to intervene.




                                          9
      The County renewed its motion for a preliminary injunction. At a hearing

on the motion, the County acknowledged that the Corps purportedly had granted

the preference, but the County disputed the result of that application:

      The Corps, by its own actions, has . . . tried to embrace the preference.
      . . . The position of the Corps has been, we’re going to try and comply
      with the Flood Control Act in this manner, we’re going to try to apply
      the preference. It is simply the County’s position . . . that it was done
      absolutely incorrectly.

      On December 23, 2009, the district court denied the motion of the County

for a preliminary injunction. The district court applied deference to the decision of

the Corps under Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467

U.S. 837, 104 S. Ct. 2778 (1984), and concluded that the County had failed to

establish a likelihood of success on the merits. The district court reasoned that

“the clear objective [of section 460d] is to entrust the [Corps] to grant leases of

land in the public interest” and that a “preferred organization must also meet the

primary and founding goal of the statute by serving the public interest.” The

district court concluded that the Corps had granted the preferential treatment owed

to the County under section 460d, but had reasonably determined within its

discretion that, despite the preference, the proposal of the Association “better

served the public interest.”

                          II. STANDARD OF REVIEW


                                          10
      “We review the decision to deny a preliminary injunction for abuse of

discretion.” Scott v. Roberts, 612 F.3d 1279, 1289 (11th Cir. 2010). “In so doing,

we review the findings of fact of the district court for clear error and legal

conclusions de novo.” Id. “This scope of review will lead to reversal only if the

district court applies an incorrect legal standard, or applies improper procedures,

or relies on clearly erroneous factfinding, or if it reaches a conclusion that is

clearly unreasonable or incorrect.” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d

1223, 1226 (11th Cir. 2005). Otherwise, “an abuse of discretion standard

recognizes there is a range of choice within which we will not reverse the district

court even if we might have reached a different decision.” Id. A party that seeks a

preliminary injunction must establish that “(1) it has a substantial likelihood of

success on the merits; (2) irreparable injury will be suffered unless the injunction

issues; (3) the threatened injury to the movant outweighs whatever damage the

proposed injunction may cause the opposing party; and (4) if issued, the injunction

would not be adverse to the public interest.” Siegel v. LePore, 234 F.3d 1163,

1176 (11th Cir. 2000) (en banc). “‘A preliminary injunction is an extraordinary

and drastic remedy not to be granted unless the movant clearly establishes the

burden of persuasion as to the four requisites.’” Am. Civil Liberties Union of Fla.,

Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009) (quoting


                                          11
All Care Nursing Serv., Inc. v. Bethesda Mem’l Hosp., Inc., 887 F.2d 1535, 1537

(11th Cir. 1989)).

                                III. DISCUSSION

      We divide our discussion in two parts. First, we explain that section 460d

does not create a right of first refusal for preference entities. Second, we explain

that the weight accorded to a preference for a lease under section 460d is

“committed to agency discretion by law” and is not subject to judicial review

under the Administrative Procedure Act, 5 U.S.C. § 701(a)(2).

A. Section 460d Does Not Create a Right of First Refusal for Preference Entities.

      The County argues that section 460d unambiguously creates a right of first

refusal for preference entities for leases of lands at water resource development

projects as long as those entities are “ready and willing” to “implement a bona-fide

recreational plan,” but we disagree. Although section 460d requires that

“preference shall be given to . . . local governmental agencies,” it also empowers

the Secretary of the Army to grant leases “upon such terms and for such purposes

as he may deem reasonable in the public interest.” 16 U.S.C. § 460d. The Corps

must give a local government a preference, but the Corps must also consider the

public interest. The 2005 Recreation Development Policy followed by the Corps,

which became Chapter 16 of Engineer Regulation 1130-2-550 in 2009, provides


                                          12
several factors the Corps must consider when it evaluates competing proposals for

a lease under section 460d, including the purposes of the project, natural and other

resources, land use classifications, public demand, economic viability, and

recreational demands.

      In this kind of competitive or commercial process, a preference gives a

competitor an advantage, but not an entitlement to win. We have held that another

provision of the Flood Control Act of 1944 that directed the Secretary of Energy to

transmit and dispose of power under his control “in such manner as to encourage

the most widespread use thereof” and provided that “[p]reference in the sale of

such power and energy shall be given to public bodies and corporations,” 16

U.S.C. § 825s, “merely establishe[d] a series of general directives to control the

distribution of excess electricity” and did “not establish an entitlement to power,”

Greenwood Utils. Comm’n v. Hodel, 764 F.2d 1459, 1464 (11th Cir. 1985). The

same is true here. The preference clause in section 460d does not create an

entitlement to the lease of Bethel Park for the County; section 460d establishes

general factors that the Corps must consider when it evaluates proposals for leases.

      The County contends that the Corps violated its own regulations when it

awarded the lease of Bethel Park to the Association, but we again disagree. The

regulation that governs leases under section 460d permits the Secretary of the


                                         13
Army to lease lands “in reservoir areas for such periods and upon such terms as he

may deem reasonable” and requires that “preference shall be given to Federal,

State, or local governmental agencies.” 33 C.F.R. § 211.6(a)(2). This regulation

repeats the substantive requirements of section 460d and fails to support the

argument of the County for a right of first refusal. Although the County cites

another regulation, 32 C.F.R. § 643.23, that provides the order of “preference” for

some leases by the Army, 10 U.S.C. § 2667, that regulation does not govern the

lease for the water development project at Bethel Park, which the Corps and the

Association executed under section 460d. Section 2667, in contrast with section

460d, provides “[o]ne of the principal authorities for the use of military real estate

for commercial purposes.” 32 C.F.R. § 643.3; see also Eng’r Reg. 405-1-12

(explaining the difference between leases under section 460d and section 2667).

B. The Weighing of the Preference by the Corps is Not Subject to Judicial Review
                   under the Administrative Procedure Act.

      The County argues alternatively that the Corps gave no discernible weight

or value to the preference in the evaluation of the competing proposals, but we

must decide first whether that decision is even subject to judicial review. Before

we can review the evaluation by the Corps under the Administrative Procedure

Act, the County “must first clear the hurdle of § 701(a),” Heckler v. Chaney, 470

U.S. 821, 828, 105 S. Ct. 1649, 1654 (1985), which provides that final agency

                                          14
action is subject to judicial review unless “agency action is committed to agency

discretion by law,” 5 U.S.C. § 701(a)(2). The County cannot clear that hurdle.

      The Supreme Court has explained that the primary focus of section

701(a)(2) is whether the governing statute provides the courts with “law to apply”:

      [W]e therefore turn to the [applicable federal statute] to determine
      whether in this case Congress has provided us with “law to apply.” If
      it has indicated an intent to circumscribe agency enforcement discretion,
      and has provided meaningful standards for defining the limits of that
      discretion, there is “law to apply” under § 701(a)(2), and courts may
      require that the agency follow that law; if it has not, then an agency . .
      . decision [is] “committed to agency discretion by law” within the
      meaning of that section.

Heckler, 470 U.S. at 834–35, 105 S. Ct. at 1657. Although section 701(a)(2) “is a

very narrow exception” and only “applicable in those rare instances where statutes

are drawn in such broad terms that in a given case there is no law to apply,”

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S. Ct. 814,

820–21 (1971) (footnote and internal quotation marks omitted), overruled on other

grounds by Califano v. Sanders, 430 U.S. 99, 97 S. Ct. 980 (1977), “review is not

to be had if the statute is drawn so that a court would have no meaningful standard

against which to judge the agency’s exercise of discretion,” Heckler, 470 U.S. at

830, 105 S. Ct. at 1655.

      We have held that the Secretary of the Interior’s statutory authority to

acquire land in trust for Indians was “committed to agency discretion by law”

                                         15
under section 701(a)(2) when the Secretary’s decision “involve[d] a myriad of

factors” and the governing statute provided the Secretary “broad discretion” and

failed to “delineate the circumstances under which exercise of [that] discretion

[was] appropriate.” Fla. Dep’t of Bus. Regulation v. U.S. Dep’t of Interior, 768

F.2d 1248, 1256 (11th Cir. 1985). The statute empowered the Secretary, “in his

discretion, to acquire . . . any interest in lands . . . for the purpose of providing land

for Indians.” 25 U.S.C. § 465. We explained that “[i]f there are no judicially

manageable standards available for judging how and when an agency should

exercise its discretion, then it is impossible to determine even whether the agency

abused its discretion.” Fla. Dep’t of Bus. Regulation, 768 F.2d at 1255. We also

held that an accompanying regulation did not provide “law to apply” even though

it provided factors the Secretary had to consider under the federal statute:

      [T]he factors, although they are guides for the exercise of the Secretary’s
      discretion, are not “law” that a reviewing court can apply. The
      regulation does not purport to state how the agency should balance these
      factors in a particular case, or what weight to assign to each factor. . . .
      The factors listed in the regulation are not the kind of legal principles
      courts are familiar with applying to a particular case.

Id. at 1256–57. See also Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1294 (11th Cir.

2008); Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498, 1507–08 (11th Cir.

1992); S. Research Inst. v. Griffin Corp., 938 F.2d 1249, 1254–55 (11th Cir.



                                           16
1991); Am. Fed’n of Gov’t Emps., Local 2017 v. Brown, 680 F.2d 722, 725–27

(11th Cir. 1982); Bullard v. Webster, 623 F.2d 1042, 1046 (5th Cir. 1980).

      We are without “law to apply” to govern the review of the weight accorded

the preference for the lease of Bethel Park. Although the statutory and regulatory

framework grants a preference for the County, that framework also requires the

Secretary of the Army to consider the public interest. The 2005 Recreation

Development Policy provides several additional factors that the Corps must

consider when it evaluates proposals for leases. No law provides “how the agency

should balance these factors in a particular case, or what weight to assign to each

factor.” Fla. Dep’t of Bus. Regulation, 768 F.2d at 1256. Section 460d instead

grants the Secretary broad discretion to award leases “for such periods, and upon

such terms and for such purposes as he may deem reasonable in the public

interest.” 16 U.S.C. § 460d. We have recognized that “‘[t]he court is not

empowered to substitute its judgment for that of the agency,’” Envtl. Def. Fund,

Inc. v. Corps of Eng’rs of U.S. Army, 492 F.2d 1123, 1139 n.33 (5th Cir. 1974)

(quoting Overton Park, 401 U.S. at 416, 91 S. Ct. at 824), when the relevant

statute “‘leaves room for a responsible exercise of discretion and may not require

particular substantive results in particular problematic instances,’” id. at 1139–40

n.33 (quoting Calvert Cliffs’ Coordinating Comm., Inc. v. U.S. Atomic Energy


                                         17
Comm’n, 449 F.2d 1109, 1112 (D.C. Cir. 1971)). A challenge to the procedural

compliance of agency action may warrant “full court consideration,” but a

“determination of the point where the final balance to act or withhold action is so

broadly committed to quasi-legislative agency action that court review is

exceedingly narrow.” Id. at 1139 n.33.

      The district court did not abuse its discretion when it denied the motion of

the County for a preliminary injunction. The County failed to establish a

substantial likelihood of success on the merits of its complaint. The County

offered no proof that the Corps had wholly ignored the preference clause of

section 460d. The Corps instead presented evidence that it had granted the County

a preference, but the County asked the district court to second guess the weight

accorded that preference amidst a host of other factors considered by the Corps in

its evaluation of the competing proposals. Because there is no “law to apply” and

no “meaningful standard against which to judge” the weight accorded the

preference for the lease of Bethel Park, that decision by the Corps is not subject to

judicial review under the Administrative Procedure Act. The weighing of the

preference for the lease is “committed to agency discretion by law.” 5 U.S.C. §

701(a)(2).




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                       IV. CONCLUSION

We AFFIRM the denial of the motion for a preliminary injunction.




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