UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRIENDS OF IRONBRIDGE PARK; DAVID
R. COSBY; SANDRA B. COSBY,
Plaintiffs-Appellants,

v.

BRUCE BABBITT, SECRETARY, UNITED
STATES DEPARTMENT OF THE INTERIOR;
KEITH EVERETT, Superintendent,
National Park Service; CYNTHIA
WILKERSON, Programs Director,
                                                               No. 98-2373
National Park Service; L. DOUGLAS
PRITCHARD, JR., Engineering
Supervisor, Chesterfield County
Engineering Department; ROBERT
STANTON, Director, National Park
Service; LANE B. RAMSEY,
Administrator, Chesterfield County;
RICHMOND FIRST TEE,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CA-98-481)

Argued: June 10, 1999

Decided: July 22, 1999

Before MURNAGHAN, WILKINS, and HAMILTON,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Bruce Edwin Arkema, CANTOR, ARKEMA &
EDMONDS, Richmond, Virginia, for Appellants. Evelyn Soon-Soon
Ying, Environment and Natural Resources Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellees. ON BRIEF: Lois J. Schiffer, Assistant Attorney General,
Andrew C. Mergen, Environment and Natural Resources Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C.; Helen F. Fahey, United States Attorney, Debra J. Prillaman,
Assistant United States Attorney, Richmond, Virginia, for Federal
Appellees; Steven L. Micas, Michael S.J. Chernau, CHESTERFIELD
COUNTY ATTORNEY'S OFFICE, Chesterfield, Virginia, for
Appellee County; William G. Broaddus, Eugene E. Mathews, III,
MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Richmond,
Virginia, for Appellee Richmond First Tee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Friends of Ironbridge Park, David R. Cosby, and Sandra B. Cosby
(collectively, "FIP") appeal an order of the district court sustaining a
decision of the National Park Service (NPS) that NPS approval is not
required for the construction of a public golf course and related facili-
ties in a park that was developed in part with funds awarded under § 6
of the Land and Water Conservation Fund Act (LWCFA) of 1965, as
amended. *See 16 U.S.C.A. § 460l -8 (West 1993 & Supp. 1999). FIP
_________________________________________________________________
*FIP brought this action against the Secretary of the Department of the
Interior, the Superintendent of the NPS, the company that proposed to
construct the golf facility, and various other individuals. For ease of ref-
erence, we will refer to these parties collectively as "the Secretary."

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contends that the NPS acted arbitrarily and capriciously in determin-
ing that such construction would not bring about a change in use that
would "significantly contravene the original plans for the area." 36
C.F.R. § 59.3(d) (1998). Concluding that the district court correctly
sustained the NPS's decision, we affirm.

I.

The LWCFA was enacted in part to provide funds to assist in the
development and preservation of outdoor recreation resources. See 16
U.S.C.A. § 460l-4 (West 1993). The Act limits the ability of grant
recipients to convert the area defined in the LWCFA project agree-
ment to other than public outdoor recreation use. See id.
§ 460l-8(f)(3); 36 C.F.R. § 59.1 (1998). The applicable regulations
also require that advance notice be given to the NPS for all proposed
facility changes; changes "that significantly contravene the original
plans for the area must" receive NPS approval. 36 C.F.R. § 59.3(d).
In determining whether a proposed change would constitute a signifi-
cant contravention of the original plans, "a project area should be
viewed in the context of overall use and should be monitored in this
context." Id.

In 1984, the United States awarded $270,000 to the Common-
wealth of Virginia under the LWCFA for assistance in development
of Ironbridge Park in Chesterfield County, Virginia (the County). At
that time, the development plan for the park involved the construction
of many recreational facilities, including an outdoor amphitheater, a
swim and wave pool, a skating rink, a nature center, and parking lots.
The plan also called for the provision of some open space for general
recreational use. The grant was awarded to the Commonwealth to be
used for the first phase of development, the construction of "picnic
areas, sports and playfields, trails and support facilities." J.A. 418.
Although the County completed Phase I of the development, several
of the other facilities identified in the development plan--including
the amphitheater, nature center, swim and wave pool, and the skating
rink--were not constructed. Some of the land that has remained unde-
veloped is now used by local residents for hiking and mountain bik-
ing.

In 1998, the County decided to lease 150 acres of the undeveloped
land for construction of a public golf course and related facilities. The

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County notified the Commonwealth of the proposal, and the Com-
monwealth in turn notified the NPS pursuant to the postcompletion
requirements outlined in the applicable regulation. See 36 C.F.R.
§ 59.3. After reviewing the materials submitted by the Common-
wealth, the NPS concluded that at the time of the approval of the
LWCFA project, "there was a clear indication that additional recre-
ation facilities were expected to be developed in future phases"
throughout the park and that the proposed golf facility was "not
inconsistent with nor [did] it contravene the original intent of" the
project. J.A. 537. The NPS therefore decided that federal agency
approval of the proposed golf facility was not required.

FIP subsequently initiated this action, seeking a declaration that
approval of the NPS is indeed required before the golf facility may
be constructed. See 5 U.S.C.A. § 704 (West 1996) (providing for judi-
cial review of final agency decisions). Following a bench trial, the
district court sustained the NPS's decision. In so doing, the court
emphasized that although construction of the golf facility would dis-
place some hiking and biking trails, other trails would remain, and
that even if the master plan with the golf facility was completed, over
50 percent of the park would remain undeveloped.

II.

We must set aside the agency action if it is "arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law." 5
U.S.C.A. § 706(2)(A) (West 1996). Under this highly deferential stan-
dard, the agency action will be sustained if the record reveals a ratio-
nal basis for the decision. See Trinity Am. Corp. v. United States EPA,
150 F.3d 389, 395 (4th Cir. 1998).

FIP argues that the NPS acted arbitrarily and capriciously in decid-
ing that its approval was not necessary for construction of the golf
facility because such construction would constitute a change in use
that would "significantly contravene the original plans for the area."
36 C.F.R. § 59.3(d). FIP contends that "area" in the context of the reg-
ulation refers only to the portion of the project site on which the pro-
posed change will occur, i.e., the 150 acres on which the golf facility
is proposed to be built. FIP notes that the regulations specifically
require federal agency approval prior to converting an area from a

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passive to an active use, e.g., from a nature trail to a swimming pool,
see id., and argues that is exactly what the County proposes to do
here.

The Secretary, on the other hand, contends that"area" in the con-
text of the regulation refers to the entire project area, rather than only
to the 150 acres on which the golf facility is proposed to be built. We
must defer to an agency's construction of its own regulations unless
it is "plainly erroneous or inconsistent with the regulation." Auer v.
Robbins, 519 U.S. 452, 461 (1997) (internal quotation marks omit-
ted). The regulations provide support for that interpretation, as the
word "area" is used in § 59.1 to refer to the land depicted in the proj-
ect boundary map. See 36 C.F.R. § 59.1. Here, the land depicted in
the boundary map was the entire 400-acre Ironbridge Park. Accord-
ingly, the Secretary's interpretation is neither plainly erroneous nor
inconsistent with the regulation, and it therefore is controlling. See
Auer, 519 U.S. at 461.

In view of the meaning of "area" as used in the regulations, it is
clear that the NPS did not act arbitrarily and capriciously in determin-
ing that the construction of the golf facility would not constitute a
change in use of the area from passive to active such that § 59.3(d)
would require NPS approval of the change. The original plans were
for Ironbridge Park to be used for both active and passive purposes.
Because construction of the golf facility on 150 acres of the park will
not change the mixed character of the park as a whole, the regulations
do not require NPS approval before the golf facility can be con-
structed. See 36 C.F.R. § 59.3(d) ("a project area should be viewed in
the context of overall use" (emphasis added)).

III.

In sum, because we conclude that the NPS acted rationally in
deciding that its approval was not required regarding the construction
of the golf facility, we affirm.

AFFIRMED

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