Congress enacted the Fish and Wildlife Coordination Act (the “1958 Act”), which
again amended the 1934 [Fish and Wildlife Coordination Act] 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.
II. RELEVANT FACTS.
A. Cooperative Farming Agreements In The McNary And
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. 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
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). 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
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. 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)).
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.
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[.]”).
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
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.
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
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.
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
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.
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.
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
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. Therefore, the court has determined that
the Service violated the FGCAA.
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.
The opinion next lists 6
cooperators who received cooperative farming agreements and their
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. (Jay Hymas d/b/a Dosmen Farms v. U. S.,
No. 13-291C, July 25, 2014.) (pdf)