source: Caselaw Access Project

author: SEYMOUR, Circuit Judge.

license: Public Domain

text:
    SECURITIES AND EXCHANGE COMMISSION, Plaintiff-Appellee, v. Curtis L. DEYOUNG, an individual, Defendant-Appellee, American Pension Services, Inc., a Utah corporation, Defendant. Richard Seiler; Michelle Seiler; Christa Zaro, Intervenors-Appellants. First Utah Bank, Interested Party-Appellee, and Diane Thompson, Receiver-Appellee.
    No. 16-4013
    United States Court of Appeals, Tenth Circuit.
    FILED March 9, 2017

      Brent D. Wride (Mark W. Pugsley and Jared N. Parrish with him on the briefs), of Ray Quinney & Nebeker P.C., Salt Lake City, Utah, for Richard Seiler, Michelle Seiler, and Christa Zaro, Interve-nors-Appellants.
    Gary E. Doctorman (Matthew D. Cook and Emily D. Holt with him on the brief), of Parsons Behle. & Latimer, Salt Lake City, Utah, for First Utah Bank, Interested Party-Appellee.
    Mark R. Gaylord (Melanie J. Vartabedi-an with him on the brief), of Ballard Spahr LLP, Salt Lake City, Utah, for Receiver-Appellee.

      Theodore J. Weiman, Senior Counsel (Anne K. Small, General Counsel, Sanket J. Bulsara, Deputy General Counsel, Michael A. Conley, Solicitor, and Tracey A. Hardin, Assistant General Counsel, with him on the brief), Securities and Exchange Commission, Washington, D.C., for Plaintiff-Appellee SEC.
    Before HOLMES, SEYMOUR, and MORITZ, Circuit Judges.
   SEYMOUR, Circuit Judge.

The Securities and Exchange Commission (“SEC”) brought this civil action against American Pension Services (“APS”), a third-party administrator of self-directed individual retirement and 401(k) accounts (collectively “IRA Accounts”), and its President and CEO, Curtis DeYoung. The SEC alleged that DeY-oung misappropriated $24 million in APS customer funds that APS had commingled in a Master Trust Account at First Utah Bank (“First Utah”), custodian of the funds. The district court appointed a Receiver, who ultimately entered into a Settlement Agreement with First Utah. The settlement included a Claims Bar Order, which barred all other claims against First Utah relating to any IRA Accounts established with APS. Three of the approximately 5,500 APS clients (collectively “IRA Account Owners”) who had a financial stake in the receivership entity intervened and contended that the court could not bar them from filing their own claims against First Utah. The district court disagreed and approved the settlement. Intervenors appeal, and we affirm.

I

In 1992, APS requested that First Utah act as custodian for the IRA Accounts it held for the benefit of its IRA Account Owners because APS was not a bank and did not qualify to serve as custodian under the Internal Revenue Code. APS entered into a Custodian Agreement with First Utah that described each of their duties and established a depository account titled the Master Trust Account. APS’s CEO, Curtis DeYoung, was the sole signatory with authority to withdraw money from the Master Trust Account. ■

In 2009, APS and First Utah renewed the 1992 Custodian Agreement. Both custodian agreements delegated to APS the duty to provide all accounting services for IRA Account Owners with respect to their individual accounts with APS. The agreements included an indemnity provision that arguably entitled First Utah and its officers and directors to indemnity from all claims in connection with APS’s performance under the agreements. APS commingled all of the IRA Account Owners’ cash into the Master Account at First Utah and maintained all the records reflecting individualized ownership of the IRA Account Owner funds.

The district court found that between 2000 and 2014, DeYoung misappropriated approximately $24 million from the APS investors. In so doing, DeYoung falsified “IRA account statements to assure that the funds missing from the Master Accounts would reconcile with the cash APS reported to be in the IRA Account Owner’s [sic] accounts.” Aplt. App., vol. 3 at 475, D. Ct. Findings at ¶ 17.

The SEC instituted this action against APS and DeYoung. The district court subsequently appointed a receiver to gather and manage the assets of APS and DeY-oung. The Receiver was given the power to, among other things, “pursue, resist and defend all suits, claims and demands which may now be pending or which may be brought by or asserted against the Receivership Estates.” Id. at ¶ 20 (quoting Order Appointing Receiver).

In May 2014, the Receiver initiated discussions with First Utah regarding its potential liability with respect to the misappropriation of $24 million of IRA Account Owner funds from the Master Account. The Receiver took depositions and had access to APS’s records, “including documents, agreements, and records pertaining to the relationship among APS, First Utah, and the IRA Account Owners, and financial information regarding First Utah, including the Written Agreement with the Federal Revenue Bank of San Francisco ... and insurance policies potentially insuring First Utah.” Id. at ¶ 29. In furtherance of these discussions, the Receiver provided First Utah with a draft complaint setting forth the nature of the claims the Receiver intended to pursue against First Utah on behalf of APS and for the benefit of the IRA Account Owners. All of the claims, in some form, focused on First Utah’s “failure to take necessary steps to assure the IRA Account Owners’ deposits were safe.” Aplt. App., vol. 2 at 346.

First Utah responded by asserting numerous defenses and counterclaims it intended to argue if the Receiver or any IRA Account Owner filed an action against it based on its role as custodian, including fraudulent inducement by APS and DeY-oung, statute of limitations, rescission, comparative negligence, and First Utah’s right to indemnification under the 2009 Agreement. The district court noted that “[ejxtensive investigation, discovery and research were conducted regarding the claims and defenses raised by First Utah, Everest [National Insurance Company, First Utah’s insurance provider], and the Receiver on behalf of APS.” D. Ct. Findings at ¶ 33. Moreover, the district court found the following with regard to the Receiver’s claims against First Utah:

35. The Receiver’s claims on behalf of APS against First Utah are substantially identical to the claims the IRA Account Owners could assert against First Utah if filed separately. The defenses and counter claims asserted by First Utah in defense of such claims are substantially identical to the defenses and counter claims that could be asserted against the IRA Account Owners claims. The claims are all from the same loss, from the same entities, relating to the same conduct, and arising out of the same transactions and occurrences by the same actors.
36. After several months of arm’s length negotiations between the Receiver on behalf of APS and First Utah, and Everest, including three days of.mediation with a professional mediator, all under plain view of the SEC, the SEC, the Receiver, First Utah and Everest determined it to be in their respective best interests, to be fair and reasonable, and in the best interests of the Receivership Estate, to resolve the claims, defenses, and counter-claims by entering into the Settlement Agreement.

Id. at ¶ ¶ 35, 36. The district court also noted the importance of all parties reaching a settlement in the case:

40. The claims, defenses and counter claims of the Receiver, the IRA Account Owners, the Receivership Estate and First Utah are complex and so inextricably intertwined such that a determination of each party’s liabilities and rights independently may be impossible or, at a minimum, impracticable without extensive litigation.

Id. at ¶ 40.

With respect to the financial condition of First Utah at the time of the settlement negotiations, the district court found:

51. The Receiver undertook an analysis of the financial condition of First Utah, including reviewing publicly available financial reports and meeting with and discussing First Utah’s financial condition with key bank personnel and the Receiver’s independent banking consultants.
52. First Utah is a highly regulated, small Utah community bank with only seven branches, all in Salt Lake County, Utah. It has limited capital that it can use to fund its portion of the settlement amount. See Written Agreement; financial call reports publicly filed by First Utah with the Utah Department of Financial Institutions.
53. On February 23, 2009, First Utah became subject to a Written Agreement with the Federal Reserve under the Board of Governors Federal Reserve System, Docket No. 09-130-WA-RB-SM. Under the Written Agreement, First Utah was required to increase its capital. While First Utah was recently released from the Written Agreement, it remains under a mandate of its federal regulators to increase its capital. Given First Utah’s current capital structure, First Utah’s contribution toward settlement, although limited, remains substantial ($2.0 million) in relation to or as a percentage of its total capital. The settlement contribution will also reduce its regulatory capital.
54. According to First Utah’s current capital structure, as reflected in the financial call reports publicly filed by First Utah with the Utah Department of Financial Institutions, the payment of $2 million by First Utah toward the settlement will reduce First Utah’s capital.
55. In reviewing First Utah’s financial condition, the totals of the aggregated claims asserted by the Receiver ($24 million) and indirectly by the Interve-nors and the capital available from First Utah to satisfy the maximum amount of such claims, would result in First Utah being unable to pay the claims were the Receiver to prevail.
56. It is also determined that all of the funds realistically available from First Utah are being paid to the Receiver and devoted to the claims — that is the entire $3 million from Everest and $2 million from First Utah, plus the additional consideration.
57. Further, demanding a greater cash contribution from First Utah would reduce capital to an unreasonably low level for regulatory purposes which could negatively impact First Utah’s financial stability.
58. In contrast, if the Receiver were to pursue First Utah to judgment, there is a very real risk that the capital now available for the settlement payments may be exhausted and/or substantially limited ultimately resulting in less potential recovery for the Receivership Estate and the ultimate distribution to IRA Account Owners.

Id. at ¶¶ 51-58.

The settlement exceeded $5 million and the bulk of it came from a $2 million contribution from First Utah and a $3 million contribution from Everest. The settlement proceeds were to be distributed to the IRA Account Owners on a pro rata basis. Finally, and most importantly for this case, the settlement was conditioned on the district court entering a Claims Bar Order:

63. The payments and releases in the Settlement Agreement are conditioned upon this Court’s entry of the Claims Bar Order, permanently barring or enjoining APS, the IRA Account Owners, and their respective affiliates from commencing or continuing any judicial, administrative, arbitration, or other proceeding and/or asserting or prosecuting any claims against First Utah, Everest, and their affiliates, arising out of, in connection with, or relating to any APS self-directed IRA.

Id. at ¶ 63.

As to the fairness of the settlement agreement, the district court made the following findings:

67. The Court scrutinized the proposed settlement very carefully and did not merely accept the representations of the Receiver.
68. Sophisticated parties spent the better part of one year in arm’s-length negotiations under the view of the SEC.
69. ... [Bjecause of the financial condition of First Utah and the very real possibility that protracted litigation may render First Utah unable to satisfy a judgment, it is in the best interest to settle rather than engage in protracted litigation, particularly in light of the wasting nature of the Everest Policy.
71. If the claims against First Utah were litigated or allowed to be litigated as a class-action or through multiple individual cases, First Utah would not be willing to settle this case. Moreover, the Everest Policy would be used to pay First Utah’s defense costs until the Everest policy limit was depleted and there would be little, if any, insurance proceeds available to satisfy any judgments in favor of the IRA Account Owners.
72. Based on its existing capital structure, First Utah has limited capital to satisfy multiple judgments or settlements with the Receiver and/or IRA Account Owners.
75. The SEC has independently approved the terms of the settlement and expressed its view that the settlement is fair and reasonable and in the best interest of the Receivership Estate and the IRA Account Owners.
76. Under the recent Utah Supreme Court case of Graves v. N. Eastern Servs., 2015 UT 28, 345 P.3d 619, the intentional misconduct of DeYoung could be compared with the alleged negligence of First Utah and the outcome could impair the ability of the Receiver to recover the missing $24 Million or any significant sum from First Utah.
77. The cdmplex claims and the rights and obligations of the parties, including the IRA Account Owners and Intervenors, are so inextricably intertwined that resolution of the claims independently, as opposed to collectively, would be difficult and inefficient, would substantially increase costs to the Receivership Estate, and would likely reduce the ultimate recovery to the IRA Account Owners. Specifically, the claims involve the same parties, the same conduct, the same actors, the same transactions and occurrences, the same existence of indemnity claims of First Utah against APS and the IRA Account Owners, and the claims are all from the same loss.
83. If the- settlement coupled with the Claims Bar Order is not approved, there is a substantial likelihood that the IRA Account Owners will receive a smaller recovery, if any, from First Utah and Everest.
86. This settlement offers the highest potential recovery for the Receivership Estate and IRA Account Owners and best method to carry out the Court’s mandate to efficiently and economically administer the Receivership Estate.
87. The Court finds the proposed Settlement Agreement is fair, just, and equitable and in the best interest of the Receivership Estate, including creditors of the Estate, such as the IRA Account Owners.

Id. at ¶¶ 67-69, 71-72, 75-77, 83, 86-87.

While over 99% of the roughly 5,500 IRA Account Owners approved of the settlement, three did not. These three IRA Account Owners moved to intervene in the action for the limited purpose of objecting to the ' Claims Bar Order insofar as it prohibited them from filing a separate state court action against First Utah aris-1 ing out of the transactions between APS and First Utah. Notably, Intervenors do not otherwise object to the settlement, which they concede is “fair, just, equitable and reasonable except for the Claims Bar Order.” Id. at ¶ ■ 91. The district court made the following finding regarding the nature of their claims:

45. Recently, three IRA Account Owners filed the Intervenors’ Motion, wherein they seek to assert claims directly against First Utah, which claims closely parallel the claims the Receiver identified and notified First Utah she would pursue unless a settlement could be reached. The claims these Interve-nors wish to assert are all from the same loss, from the same entities, relating to the same conduct, and arising out of the same transactions and occurrences by the same actors.

Id. at ¶ 45.

The district court issued an order approving the settlement and entering the bar order. Because the Claims Bar Order operated as an injunction, it was immediately appealable under 28, U.S.C. § 1292(a)(1). Moreover, the district court certified its order as a final, appealable judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.

II

Intervenors appeal, contending (1) the Anti-Injunction Act prohibits an injunction in this case; (2) the district court lacked authority to issue the Claims Bar; and (3) the Claims Bar Order rests on unsupported factual findings. We address each argument in turn.

1. The Anti-Injunction Act

Intervenors first argue that the “Claims Bar Order, which permanently enjoins the Account Owners from going forward with their case against First Utah, is an impermissible injunction against a state court action.” Aplt. Br. at 7. Whether the Anti-Injunction Act prohibits the Claims Bar Order is a question of law we review de novo. Ambort v. United States, 392 F.3d 1138, 1140 (10th Cir. 2004).

The Anti-Injunction Act provides:

A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of. its jurisdiction, or to protect or effectuate its judgments.

28 U.S.C. § 2283. The Intervenors contend that the Act is “an absolute prohibition against enjoining state court proceedings, unless the injunction falls within one” of three exceptions listed in the Act. Aplt. Br. at 7 (quoting Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 286, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970)). They then spend much of their brief arguing that the exceptions to the Anti-Injunction Act do not apply in this case and therefore, they conclude, the Act must apply. The Anti-Injunction Act, however, does “not preclude injunctions against the institution of state court proceedings, but only bar[s] stays of suits already instituted.” Dombrowski v. Pfister, 380 U.S. 479, 484 n.2, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). It is undisputed that no state court action was pending in the instant matter at the time the district court issued its injunction.

Intervenors counter in their reply brief that the only reason there was no state court action pending was because the district court entered a preliminary injunction forbidding the IRA Account Owners from filing their lawsuits against First Utah, concluding that the Anti-Injunction Act is therefore applicable. But Interve-nors cite no authority for this argument. The language of the Act is clear and so is the precedent interpreting it: the Act does not apply unless there is a state court proceeding currently in progress. See 17 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4222 at 64 n.19 (citing cases). Accordingly, the Claims Bar Order does not violate the Anti-Injunction Act.

2. The District Court’s Authority to Enter the Claims Bar Order

Intervenors maintain the district court lacked authority to enter the Claims Bar Order, asserting in part that the Receiver lacked standing to bring the claims of investors. Whether a party has standing is a legal question we review de novo. Lippoldt v. Cole, 468 F.3d 1204, 1216 (10th Cir. 2006).

[T]o satisfy Article Ill’s standing requirements, a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

For their standing argument, Interve-nors maintain that “[t]he Account Holders’ claims belong exclusively to [the individual Account Holders] and cannot be asserted by the Receiver.” Aplt. Br. at 16. As support, they rely on Liberte Capital Group, LLC v. Capwill (Liberte II), 248 Fed.Appx. 650 (6th Cir. 2007) (unpublished), for the proposition that a “receiver lacks standing to institute an action on behalf of investors in the corporation.” Aplt. Br. at 17 (quoting Liberte II, 248 Fed.Appx. at 656 (citing 13 James Wm. Moore et al., Moore’s Federal Practice § 66.08[l][b] (3d ed. 2005))). We disagree with Intervenors’ proposition that Liberte II is dispositive, or even relevant.

Liberte II involved Liberte Capital Group and Alpha Capital Group, both of which marketed viatical life insurance policies to investors. Liberte Capital Group, LLC v. Capwill (Liberte I), 462 F.3d 543, 547 (6th Cir. 2006). Both Alpha and Li-berte used Viatical Escrow Services (VES) to provide trustee services in handling monies received from investors to buy policies and to service premium payments over, time. Id. A fourth company, Capwill Fund Leasing (CFL), in its capacity as escrow agent and fiduciary, invested the monies VES obtained. Id. In 1999, Liberte sued VES and CFL, alleging that they misappropriated escrow funds. Id. “The district court appointed a receiver ‘to oversee and to administer the business and assets of VES and CFL ... [and] to take and maintain exclusive and complete custody, control and possession of all the assets belonging to VES and CFL.’ ” Liberte II, 248 Fed.Appx. at 652.

In separate matters, a few individual investors filed arbitration claims against the broker-dealers who sold them Liberte viaticáis. Id. The investors alleged the broker-dealers’ representatives fraudulently induced them to purchase Liberte viaticáis. Id. Three of these investors intervened in the receivership action and sought a declaration that their arbitration claims belonged to them, not to the receivership estate. The receiver argued that any proceeds recovered by the individuals were assets of the receivership estate. Id. at 653. The investors countered that the receiver lacked standing to bring such claims. Id. The district court disagreed and granted summary judgment to the receiver on the merits. Id. at 655, 665.

The Sixth Circuit reversed on standing, emphasizing that the receiver could not “show that the receivership entities suffered an ‘injury in fact’ that [was] ‘fairly traceable’ to the actions of [the broker-dealers].” Id. at 655. “Nor [could] the [receiver] show that the receivership entities ha[d] a ‘personal stake’ in the outcome of the controversy involving the [broker-dealers].” Id. at 655-56. Accordingly, the court held the receiver lacked standing to sue. Id. at 656. As the Sixth Circuit explained three years later:

The Receiver’s standing problem in Li-berte was that none of the receivership entities — VES, CFL, Capwill or Li-berte — would have had standing to sue Liberte’s brokers for the misrepresentations the brokers made to Liberte’s investors, because none of the entities would have been able to claim any tangible injury traceable to the brokers’ misrepresentations to the investors. Because the receivership entities all would have lacked standing, and because of the rule that receivers’ rights are limited to those of the receivership entities, the Receiver also lacked standing.

Wuliger v. Mfr’s Life Ins. Co., 567 F.3d 787, 794 (6th Cir. 2009).

In contrast to the receiver in Li-berte II, the Receiver in this case has standing to sue First Utah because the receivership entity, APS, had standing to bring such an action. For example, the Receiver, in negotiating the settlement on behalf of APS, drafted a complaint against First Utah alleging that the IRA Account Owners “agreed to have the Bank act as custodian/trustee of their IRA accounts, while APS provided administrative services to their self-directed IRAs.” Aplt. App., vol. 2 at 344-45. It further alleged that First Utah had contractual and fiduciary duties which it violated, leading to the misappropriation of approximately $24 million from the commingled master trust account into which APS had deposited the funds. Id. at 845. By delegating its custodial and administrative duties to DeYoung, the draft complaint alleged, DeYoung was able to “fraudulently pilfer[ ] millions from the commingled master trust accounts.” Id. “Had First Utah performed their duties, they would have discovered the misappropriation.” Id. As illustrated, the Receiver has standing because APS suffered an injury in fact (its own insolvency), which is fairly traceable to First Utah because allegedly First Utah negligently performed its duties as custodian, and the wrong can be redressed by a court order requiring First Utah to reimburse APS for First Utah’s negligence.

We next turn to Intervenors’ contention that the district court erred by entering the Claims Bar Order. In challenging the propriety of the bar order, Intervenors have “the weighty burden of showing an abuse of discretion.” Commodity Futures Trading Comm’n v. Chilcott Portfolio Mgmt, Inc., 713 F.2d 1477, 1484 (10th Cir. 1983) (reviewing for abuse of discretion district court’s order staying all claims against equity receiver). “It is generally recognized ‘that the district court has broad powers and wide discretion to determine ... relief in an equity receivership.’ ” SEC v. Vescor Capital Corp., 599 F.3d 1189, 1194 (10th Cir. 2010) (citation omitted). “This discretion derives from the inherent powers of an equity court to fashion relief.” Id.

There are no cases from this court directly addressing a Claims Bar Order like the one at issue here. As the Fifth Circuit has recognized, “because this is a case in equity, it is neither surprising nor disposi-tive that there is no case law directly controlling the district court’s bar order.” SEC v. Kaleta, 530 Fed.Appx. 360, 362 (5th Cir. 2013) (unpublished); see also Chilcott, 713 F.2d at 1484 (“That the appealed order is apparently unique in its context is not, of course, dispositive.”). Although we have not addressed the issue, we find the Fifth Circuit’s treatment of a claims bar in SEC v. Kaleta persuasive.

In Kaleta, the district court approved a settlement between a court-appointed receiver and third parties who were closely affiliated with the receivership entities. 530 Fed.Appx. at 361-62. As part of the settlement, the district court entered a Claims Bar Order enjoining other investors from commencing any legal action against the third party entities arising from the underlying fraud. Id. at 362. A subset of investors challenged the district court’s entry of the bar order, but the Fifth Circuit affirmed. Id. Recognizing that a district court has wide discretion to determine the appropriate relief, the court reviewed the factors the district court considered. It noted that there would have been no settlement without the bar order and that “the settlement expressly permit[ted] In-tervenors and other investors to pursue their claims by ‘participating] in the claims process for the Receiver’s' ultimate plan of distribution for the Receivership Estate.’ ” Id. (second alteration in original).

Similarly, in this case, the district court carefully evaluated numerous factors that led to its decision to enter a claims bar. First, like the third parties in Kaleta, the court determined that First Utah would not have settled without the Claims Bar Order. Second, as noted above, the court found that First Utah’s liability was not the only factor the Receiver considered and that “because of the financial condition of First Utah and the very real possibility that protracted litigation may render First Utah unable to satisfy a judgment, it [was] in the best interest to settle rather than engage in protracted litigation.” D. Ct. Findings at ¶ 69. Third, the court considered that First Utah was settling to avoid protracted litigation and that First Utah would not be willing to admit any wrongdoing if claims against it were allowed to be litigated as a class action or through multiple individual cases.

Fourth, $3 million of the $5 million settlement amount came from First Utah’s insurance policy with Everest National Insurance Company, and if the case against First Utah were to be litigated, the Everest policy would first be used to pay First Utah’s defense costs, which would most. likely exhaust the policy and reduce the amount that would otherwise be available to the IRA Account Owners. Fifth, the' district court noted that approximately “99.98% of the IRA Account Owners did not object” to the settlement. Id. at ¶ 92. Thus, the vast majority of individuals who would be affected by the settlement believed it to be fair. The court also considered that victory in a lawsuit against First Utah was not certain because First Utah would respond by “asserting numerous defenses and counter claims ... if the Receiver or any other person filed an action based on its role as custodian of APS and the IRA Accounts, including statute of limitations, fraudulent inducement, rescission, comparative negligence.” Id. at ¶ 32. And, most importantly, First Utah had a right to indemnification from APS under the 1992 and 2009 Custodian Agreements. Id. The indemnification provision could force APS to indemnify First Utah for claims brought against it by IRA Account Owners, which would reduce the amount the IRA Account Owners could recover from APS.

Accordingly, the district court found that the settlement offered the highest potential recovery for the Receivership Estate and the IRA Account Owners, and that the Claims Bar Order was necessary to that settlement. While a Claims Bar Order may not be appropriate in all cases, we are persuaded that the district court did not abuse its discretion by entering one in this case.

3. The District Court’s Factual Findings

Intervenors’ last objection to the Claims Bar Order is that it rests on unsupported factual findings. Specifically, Inter-venors object only to the following two findings of fact:

56. It is also determined that all of the funds realistically available from First Utah are being paid to the Receiver and devoted to the claims — that is the entire $3 million from Everest and $2 million from First Utah, plus the additional consideration.
57. Further, demanding a greater cash contribution from First Utah would reduce capital to an unreasonably low level for regulatory purposes which could negatively impact First Utah’s financial stability.

Id. at ¶¶ 56-57. “A finding of fact is clearly erroneous if it is without factual support in the record or if, after reviewing all the evidence, we are left with a definite and firm conviction that a mistake has been made.” Mathis v. Huff & Puff Trucking, Inc., 787 F.3d 1297, 1305 (10th Cir. 2015) (citation omitted). That standard has not been met here.

As we set out fully above, the district court made extensive findings regarding First Utah’s financial status determining, in particular, that “[t]he Receiver undertook an analysis of the financial condition of First Utah, including reviewing publicly available financial reports and meeting with and discussing First Utah’s financial condition with key bank personnel and the Receiver’s independent banking consultants.” D. Ct. Findings at ¶ 51. The court emphasized that First Utah is “a highly regulated, small Utah community bank” and “has limited capital that it can use to fund its portion of the settlement amount.” Id. at ¶ 52. Notably, First Utah “remains under a mandate of its federal regulators to increase its capital.” Id. at ¶ 53. Moreover, the district court found that, without the settlement, the Everest Policy, which accounts for $3 million of the settlement, “would [have been] used to pay First Utah’s defense costs until the Everest policy limit was depleted and there would be little, if any, insurance proceeds available to satisfy any judgments of the IRA Account Owners.” Id. at ¶ 71.

The district court further stated that “[b]ased on its existing capital structure, First Utah has limited capital to satisfy multiple judgments or settlements with the Receiver and/or IRA Accounts Owners.” Id. at ¶ 72. Lastly, further supporting the court’s findings in paragraphs 56 and 57, the Settlement Agreement discusses the Receiver’s investigation into First Utah’s financial situation and her conclusion that First Utah’s $2 million contribution was the most it could pay without risking un-dercapitalization. See Aplt. App., vol. 2 at 183. Although Intervenors’ expert contended to the contrary in his Declaration, concluding that First Utah could have paid an additional $1 to $3 million without the risk of undercapitalization, the district court had the exclusive function of determining the weight to give to the expert’s Declaration. See Holdeman v. Devine, 572 F.3d 1190, 1192 (10th Cir. 2009). Thus, it was perfectly acceptable for the district court to disregard the testimony of Intervenors’ expert.

Given all of these facts, we are not persuaded that the two disputed findings of fact are clearly erroneous. Moreover, In-tervenors’ contention that “without [findings 56 and 57], there is no justification for the extraordinary relief granted” by the district court, Aplt. Br. at 22, is simply incorrect. Even without those two findings, there are more than enough factual findings to support the district court’s order approving the settlement. As First Utah pointed out in its brief,

the need to preserve the assets and operational capacity of the defendant so as not to collapse a financial institution or other defendant are proper considerations of the Court. See Baker v. Wash. Mut. Fin. Grp., LLC, 193 Fed.Appx. 294, 297-98 (5th Cir. 2006). Intervenors do not assert that First Utah could pay more while preserving its operational capacity or that its regulators would even approve a higher settlement. The Intervenors’ allegation that First Utah could pay more, even if true, does not support overturning the settlement.

Aple. First Utah Br. at 24.

We AFFIRM.

      . Going forward, when referring to facts located in District Court’s Findings of Fact, Conclusions of Law, and Order on Motions to Intervene and Approve Settlement with First Utah Bank and for a Claims Bar Order, we will be citing to the specific paragraph number in that document, which is located in volume 3 of the Appellants’ Appendix at pages 470 to 498.

      . The Everest insurance policy was a “wasting policy,” meaning that "if th[e] case were to be litigated rather than settled, the Everest Policy would first pay defense costs incurred by First Utah and only the remainder, if any, would be available toward satisfaction of a judgment.” Id. at ¶ 48.

      . Intervenors also contend in their reply brief that because the preliminary injunction was issued without notice or an opportunity to be heard, the district court violated their due process rights. This due process argument was completely absent from Intervenors’ opening brief, and "[i]t is well settled that '[tjhis court does not ordinarily review issues raised for the first time in a reply brief.' ” United States v. Gordon, 710 F.3d 1124, 1150 (10th Cir. 2013) (quoting Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000)). “Even then, the arguments are presented in a perfunctory and conclusory fashion, and we are rightly hesitant to definitively opine on such legally significant issues when they have received such cursory treatment.” Id. We decline to address the due process argument.

      . A viatical life insurance policy is an investment where one person purchases another person's life insurance policy at a price that is less than the death benefit of the policy, and the purchaser collects the death benefit when the seller dies. See Joseph M. Belth, Viatical and Life Settlement Transactions, Contingencies, Mar ./Apr. 2002, at 22-25.

      . We are further persuaded by the fact that numerous district courts have entered a claims bar order similar to the one entered in . this case. See, e.g., SEC v. Alleca, 1:12-cv-3261-WSD, 2015 WL 11199076 (N.D. Ga. Oct. 15, 2015); SEC v. Stanford Int’l Bank, Ltd, No. 3:09-CV-0298-N, 2015 WL 10845785 (N.D. Tex. Sept. 23, 2015); SEC v. Kaleta, No. 4:09-3674, 2012 WL 401069 (S.D. Tex. Feb. 7, 2012); Harmelin v. Man Fin. Inc., Nos. 06-1944, 05-2973, 2007 WL 4571021 (E.D. Pa. Dec. 28, 2007); Commodity Futures Trading Comm’n v. Equity Fin. Grp., Civil No. 04-1512 (RBK), 2007 WL 2139399 (D.N.J. July 23, 2007); SEC v. Capital Consultants, LLC, No. Civ.00-1290-KI, 2002 WL 31470399 (D. Or. Mar. 8, 2002). Moreover, the Sixth Circuit, in Gordon v. Dadante, 336 Fed.Appx. 540, 551 (6th Cir. 2009), affirmed a settlement similar to the one here that included a bar order, although the authority of the district court to enter such an order was not a basis for the appeal.

      . First Utah noted that Intervenors never moved to have their expert, Mr. McGregor, qualified as such and contends the McGregor Declaration did not meet the requirements of expert testimony under FRE 702. Mr. McGre-gor’s classification as an expert does not impact our determination that the district court was free to disregard his testimony.


author: ROSENBAUM, Circuit Judge:

text:
    HIGH POINT, LLLP, Plaintiff-Appellant v. NATIONAL PARK SERVICE, et al., Defendants-Appellees.
    No. 15-11825
    United States Court of Appeals, Eleventh Circuit.
    (March 8, 2017)

      R. Todd Silliman, Dentons US, LLP, Atlanta, GA, Mark David Johnson, for Plaintiff-Appellant.
    Michael Thomas Gray, U.S. Department of Justice c/o US Army Corps of Engineers, Office of Counsel, Jacksonville, FL, R. Brian Tanner, Sanjay S. Karnik, Edward J. Tarver, U.S. Attorney’s Office, Savannah, GA, Joseph H. Kim, U.S. Department of Justice, Environment & Natural Res. Div., Washington, DC, for Defendants-Appellees.
    Before TJOFLAT and ROSENBAUM, Circuit Judges, and KAPLAN, District Judge.

       Honorable Lewis A. Kaplan, United States District Judge for the Southern District of New York, sitting by designation.

   ROSENBAUM, Circuit Judge:

Although Otis Redding may have enjoyed wasting time by watching ships roll into the Dock of the Bay, if he were sitting on Cumberland Island’s Brick-Kiln Dock, he truly would be wasting his time, waiting in vain for ships that would never come. That’s because dynamic environmental forces at play on Georgia’s barrier islands have caused large amounts of sediment and siltation to render the waters around Brick-Kiln Dock increasingly shallow, making the dock inaccessible to most vessels. The Candler family, which uses the dock to access property located within the boundaries of Cumberland Island National Seashore, has sought to move or extend the dock to improve its accessibility. But the National Park Service, which manages the seashore, has refused to allow changes to the dock in order to protect the island’s wilderness character.

So the family has sued, arguing that the deed by which the Candlers conveyed the island property to the government and reserved the right to continue to use the dock permits them to relocate the dock. Alternatively, the family contends that the Park Service’s denial of permission to relocate or extend the dock is arbitrary and capricious, in violation of the Administrative Procedure Act. After careful review and with the benefit of oral argument, we must conclude that “nothin’s gonna change” from the district court’s decision; since neither the deed nor federal law supports the Candlers’ position.

1. Background

A. Cumberland Island and High Point Compound

Cumberland Island is Georgia’s largest barrier island, located off the southeast coast of the state. The island consists of uplands, marshlands, and various creeks. It is bounded by Cumberland Sound and the Cumberland River to the west and the Atlantic Ocean to the east. Historically, certain families used the island as an isolated vacation retreat. Among them, the Carnegie family claimed ownership of most of the island’s uplands. The northernmost tract of land owned by the Carnegies was Tract 5N (also known as 5-N or N-5).

In 1930, Charles Howard Candler, Sr.— eldest son of Coca-Cola magnate Asa Candler — purchased property on the northern end of Cumberland Island in an area that came to be known as High Point. Over time, the Candlers acquired approximately 1300 acres of property on the island, including the 38-acre parcel now described as the High Point Compound (the “Compound”).

In 1958, the Candler family conveyed the property’s ownership to High Point, Inc., which was later succeeded by Appellant High Point, LLLP (“High Point”), a corporation made up of Candler’s deseen-' dants. To permit easier access to the Compound, the Carnegie family allowed the Candlers to build Brick-Kiln Dock (the “Dock”) in Tract 5N. The Dock, which extends from the uplands portion of Cumberland Island into the marshlands and, specifically, Hawkins Creek (a tributary of the Brickhill River), is roughly 3.5 miles from the Compound. See Appendix.

Although the island has an airstrip, visitors to the Compound arrive primarily by boat. When traveling to the island, the Candler family departs by boat from nearby Jekyll Harbor Marina and traverses intracoastal sounds, creeks, and rivers on its way to the Dock. The distance between Jekyll Harbor and the Dock is approximately 11.8 miles, and the journey lasts for roughly 45 minutes. Upon arrival at the Dock, travel to the Compound takes 15-20 minutes by automobile over the island’s unpaved roads.

Cumberland Island has other docks managed by the National Park Service (“Park Service”), including the public Plum Orchard Dock and Sea Camp Dock. And while High Point itself owns other docks on- Christmas Creek, known as Willow Dock and Cedar Dock, these do not provide deep-water access to the island.

B. Designation as a National Seashore

Beginning in 1970, the United States, through the National Park Foundation, began acquiring land on Cumberland Island with a view towards establishing a national park. On September 29, 1970, the Foundation acquired Tract 5N from the Carnegie family’s Cumberland Island Holding Company. The deed conveying Tract 5N reserved “an easement as long as [the Cumberland Island Holding Company] owns real property or an Estate for Years on Cumberland Island, Georgia, for its invitees, licensees, and assigns, to use the roads, dock, and airstrip.”

In 1972, Congress established the Cumberland Island National Seashore. 16 U.S.C. §§ 459i — 459Í-9 (the “Seashore Act”). With respect to private property owners, the legislation authorized the Secretary of the Interior to acquire lands within the designated boundaries by purchase, donation, transfer, or exchange. 16 U.S.C. § 459Í-1. In negotiating for the properties, the Secretary could allow private land owners on the island to retain “a right of use and occupancy of the property for noncommercial residential purposes” for a term of 25 years or the life of the owner. 16 U.S.C. § 459i-3(a).

The Seashore Act also required the island to be “permanently preserved in its primitive state,” with the exception of development for certain public recreation activities. 16 U.S.C. § 459i-5(b).

Finally, as relevant here, the Seashore Act directed the Secretary to recommend to the President the suitability of the national seashore for designation as wilderness under the Wilderness Act of 1964, 16 U.S.C. § 1132. The Wilderness Act of 1964, in turn, establishes a system for preserving federal lands in their “primeval” and “undeveloped” state, “untrammeled by man.” 16 U.S.C. § 1131. The statute, which allows Congress to designate areas as wilderness on the recommendation of the President, 16 U.S.C. § 1132, requires wilderness areas to be administered “in such manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas, the preservation of their wilderness character, and for the gathering and dissemination of information regarding their use and enjoyment as wilderness.” 16 U.S.C. § 1131(a).

C. Conveyance of High Point’s Property to the United States

Since Cumberland Island’s designation as a national seashore, the United States has acquired title to a majority of the privately owned land on the island. With respect to High Point, negotiations began in the early 1970s and culminated years later in 1982, with High Point’s sale of and corresponding conveyance of fee simple title to its Cumberland Island property.

In furtherance of this transaction, before the end of 1981, the parties executed an Option Agreement for the sale of High Point’s property subject to the terms and conditions of an attached Purchase and Sale Agreement. The Purchase and Sale Agreement specifically conditioned sale on the reservation of a right, free from interference, “to continue to use the area presently known as the Brick-Kiln Dock located on Hawkins Creek in tract N-5 Cumberland Island, Georgia.” Beyond reserving use of the Brick-Kiln Dock, the Purchase and Sale Agreement also reserved to High Point rights to use the Christmas Creek docks, the airstrip, and the island’s roads as well as “easements and rights of access, ingress and egress by water and air as presently existing and used by [High Point].” The. duration of the reserved rights extended to the death of the last surviving named shareholder of the corporation, who is currently roughly 35 years old.

In anticipation of the acquisition, the Park Service commissioned an appraisal of the property. The appraiser concluded that “use of [the Dock], airstrip, main road and beach road, as well as exclusive use of the beach cabana, are necessary to the full use and enjoyment of the property as it exists today.” Without the airstrip or Dock, the appraiser determined, restoring satisfactory all-weather access to High Point’s property would require “an extensive investment.”

On January 20, 1982, High Point executed a warranty deed conveying its property to the United States. The deed warranted title to all of the property above the high-water mark “but expresse[d] no warranty as to the title to those lands lying between the high and low water marks in the above-described lands, (including all marsh, beach, and tidal branches, rivers, streams, oceans, sounds, and other bodies of water), and of title to the land underlying said bodies of water.”

Among other rights, the deed reserved rights to the High Point shareholders for the remainder of their lives for use “of the area presently known as Brick-Kiln Dock.” And, while the deed gave High Point four years to rebuild and modernize various dwellings located on the Compound without interference from the Park Service, after that time, High Point was prohibited from materially changing the character of any existing improvements or structures, performing new construction, or altering the topography of the land without the approval of the Park Service. Nevertheless, the deed allowed High Point to conduct “normal maintenance” and repairs on the property’s existing improvements and structures.

Of note, the deed also contained language memorializing the parties’ intent in High Point’s conveyance of the property and its reservation of rights of use. That language described the intent as being to preserve the area “in its natural state as a part of Cumberland Island National Seashore.”

D. Designation as Wilderness

As we have noted, the Seashore Act instructed the President to evaluate whether areas of Cumberland Island National Seashore should be designated as wilderness under the Wilderness Act. 16 U.S.C. § 459i-8. In accordance with this provision, on the Park Service’s recommendation, Congress designated 8,840 acres of Cumberland as wilderness under the Wilderness Act and 11,718 acres as “potential wilderness” until such time as prohibited uses of that land ceased. Act of Sept. 8, 1982, Pub. L. No. 97-250, § 2(a), 96 Stat. 709 (“Designating Act”). The Dock falls into both categories: while the upland section of Tract 5N on which part of the Dock sits was designated as wilderness; the marshlands under the remainder of the Dock were designated as potential wilderness. The Designating Act provided that Cumberland Island wilderness areas be managed under the provisions of the Wilderness Act- “[sjubject to valid existing rights.” Id. § 2(c).

E. The Current Situation

At some point before 2008, a portion of the land separating Hawkins Creek from the Brickhill River breached upstream of the Dock. As a result, tidal flows that had once swept sediment away from the Dock into the creek and river no longer do so, resulting in increased siltation around the Dock. So the downstream portion of the creek near the Dock has become too shallow for passenger vessels to navigate except during a period of about four hours during high tide. High Point maintains that as siltation continues, the Dock will become completely unusable as a deep-water dock.

For this reason, on June 16, 2008, High Point asked the Park Service for permission to move the Dock approximately 50 to 100 yards north of its current position to another bend in Hawkins Creek. The Park Service rejected the request, concluding that the deed did not give High Point a right to move or expand the Dock, and in the absence of such a right, the Wilderness Act prohibited relocating the Dock.

Over the next four years, the parties continued negotiating, with High Point proposing two alternatives — moving the Dock 900 feet south and directly on to the Brickhill River or extending the existing Dock to the southwest over Hawkins Creek and marshland and directly into the Brickhill River. At one point, the Park Service suggested that High Point could use the public Plum Orchard dock.

High Point retained environmental consultants to evaluate various other proposed solutions, but the consultant’s report rejected all potential options as infeasible except the closing of the breach and the three solutions advanced by High Point. With respect to the Plum Orchard dock option, the report deemed it inconvenient because Plum Orchard’s location would increase the total travel time from Jekyll Harbor to the Compound to one-and-one-half or two hours, increase the distance the Candler family would have to travel over “bumpy roads” on the island, and force the Candler family to compete with members of the public for dock space.

Although the Park Service continued to reject High Point’s requests to implement one of the relocation or extension options, in 2011, it asked High Point to provide extrinsic evidence regarding the parties’ intentions regarding the Dock and access to the island at the time they executed the deed.

After reviewing this information, the Park Service agreed that the Dock, as currently situated, was essential to High Point and that siltation was a kind of “deterioration by the elements” that could permit repair of the dock in its current location. But the Park Service held firm to its position that nothing in the reserved-rights language of the deed allowed for reconstruction or relocation of the Dock. For this reason, the Park Service advised High Point that dredging Hawkins Creek, repairing the breach, or using Plum Orchard dock were the only permissible options.

The Park Service later withdrew its approval of closing the breach since that option would entail construction in a potential wilderness area. As for the dredging option, the Park Service later clarified that although the agency would not oppose dredging, it would be obliged to present to Georgia state officials “objective comments” on the environmental impacts of dredging. But High Point itself had separately concluded that the dredging option would be too expensive, anyway, as it would require re-dredging whenever the siltation levels built up, which could be as often as once a year.

In a February 2012 letter, High Point asked the Park Service to reconsider its decision. First, it sought to demonstrate that the monetary and environmental costs of dredging or using the Plum Orchard dock would be far greater than the impact of permitting High Point to relocate or extend the Dock. And second, High Point argued that the Park Service had no authority to regulate High Point’s activities in the marshlands, anyway, because, according to High Point, the state of Georgia — not the United States — holds title to the marshlands.

The Park Service declined to reconsider its decision. With respect to the costs of not permitting High Point to relocate or extend the Dock, the Park Service reaffirmed its view that the deed language simply did not permit the relocation or extension of the Dock. And in the absence of deed language allowing for such construction, the Park Service explained, the Wilderness Act effectively tied the Park Service’s hands, so the Park Service could not authorize the relocation or extension of the Dock. The letter also rejected High Point’s contentions that it could not use Plum Orchard as an alternative, noting that the dock is not within a wilderness area and opining that the extended travel time, while not convenient, is not impracticable.

As for High Point’s contention that Georgia, not the United States, owns the marshlands, the Park Service later responded that under 36 C.F.R. § 1.2(a)(3), ownership of the marshlands makes no difference to the Park Service’s statutory obligation and authority to prohibit dock construction over waters and marshlands that are within the wilderness areas of Cumberland Island National Seashore. Since the Dock falls within the bounds of the National Seashore and the marshlands over which High Point seeks to extend or relocate the Dock are within the reach of waters subject to the Park Service’s jurisdiction, the Park Service reasoned, actual ownership of the marshlands could not affect the Park Service’s authority.

F. High Point’s Lawsuit

When negotiations with the Park Service failed to bear fruit, High Point filed suit on May 10, 2012, in the Southern District of Georgia, against the Park Service and several of its officials. The first count of High Point’s suit seeks judicial review of the Park Service’s denial of High Point’s request as' a final agency action under the Administrative Procedure Act (“APA”). The second count requests a declaratory judgment that the Park Service has both statutory authority and a legal obligation to approve construction or relocation of the Dock.

Both parties filed cross-motions for summary judgment. On February 27, 2015, the district court granted the Park Service’s motion and denied High Point’s motion. First, the district court concluded that the deeds unambiguously prohibited High Point from moving or extending the Dock without the Park Service’s permission.

Because it found that the deeds did not allow for relocation of the Dock, the district court then considered whether the Park Service was authorized to permit relocation under federal law. The district court agreed with the Park Service, concluding that the Wilderness Act and this Circuit’s precedents categorically barred the Park Service from allowing construction in wilderness areas. In reaching this conclusion, the district court considered and rejected High Point’s contention that the Park Service had no authority over the marshlands. Instead, the district court determined that regardless of ownership, the Park Service had authority to regulate nonfederal lands within the boundaries of a national park.

High Point now appeals the district court’s judgment, arguing that the deed unambiguously reserves to High Point a right to relocate the Dock. Alternatively, High Point urges, the deed is ambiguous, and extrinsic evidence demonstrates that the parties intended to reserve to High Point such a right. In light of this intention, High Point contends, the Park Service is both authorized and obligated to approve relocation or extension of the Dock.

II. Standards of Review

We review de novo a district court’s grant of summary judgment in an APA case, employing the same standards as the district court. Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009). Summary judgment “is proper if, when viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 911 (11th Cir. 2007).

As for High Point’s APA claim, courts may set aside a final agency decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(A), (C); Miccosukee Tribe, 566 F.3d at 1264. A decision is arbitrary and capricious when, among other flaws, “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, [or] offered an explanation for its decision that runs counter to the evidence before the agency.” Miccosukee Tribe, 566 F.3d at 1264 (quoting Ala.-Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250, 1254 (11th Cir. 2007)).

III. Discussion

A. High Point has no reserved right to move or extend the Dock

At the outset, we note that both parties agree — and we do, too — that we interpret the deed language under the contract law of Georgia. See Hardman v. Dahlonega-Lumpkin Cty. Chamber of Commerce, 238 Ga. 551, 233 S.E.2d 753, 755 (1977). Under Georgia law, courts determine in the first instance whether deed language is clear and unambiguous. Flanders v. Cook, 167 Ga. 66, 144 S.E. 903, 904 (1928); see Begner v. United States, 428 F.3d 998, 1005 (11th Cir. 2005) (quoting Eudy v. Universal Wrestling Corp., 272 Ga.App. 142, 611 S.E.2d 770, 773 (2005)). Only if a court finds an ambiguity may it attempt to resolve the ambiguity by applying Georgia’s rules of construction, such as evaluating extrinsic evidence. See Eudy, 611 S.E.2d at 773.

High Point contends that two parts of the deed conveying its property to the United States unambiguously reserve to High Point a right to unilaterally relocate the Dock to maintain deep-water access to Cumberland Island. First, High Point relies on the deed’s reservation to High Point’s shareholders of use “of the area presently known as Brick-Kiln Dock located on Hawkins Creek in Tract N-5.” Second, High Point invokes the deed’s “Preservation” clause to support its contention that the parties contemplated unilateral relocation or reconstruction of the Dock. We are not persuaded.

1. The Brick-Kiln Dock Reservation

High Point’s argument that the Brick-Kiln Dock reservation authorizes relocation and expansion boils down to the idea that the word “area” in the reservation of use of “the area presently known as Brick-Kiln Dock located on Hawkins Creek in Tract N-5” must be broadly construed to support a reservation of use of the entire N-5 tract for deep-water access. That construction is simply not sustainable.

First, it ignores the explicit limiting impact that the phrase “presently known as Brick-Kiln Dock” has on its right of use. Only Brick-Kiln Dock is known as Brick-Kiln Dock, not any other part of Tract N-5.

Second, High Point’s interpretation of this language does not account for the significant fact that the deed contains no mention of preserving deep-water access. Had the parties intended to reserve High Point’s deep-water access in general — as opposed to its use of the Dock — the deed could have easily said so.

A straightforward reading of the deed language demands the conclusion that High Point reserved only a right to use— not to move or to extend — the Dock as it was “presently known” at the time of the conveyance.

2. The “Preservation” Clause

High Point similarly misplaces its reliance on the “Preservation” clause. That clause provides that “[a]ny building or structure ... deteriorated by the elements ... may be maintained, repaired, renovated, remodeled, or reconstructed so long as the basic character of the building or structure is not materially altered.”

Accepting for the present that siltation in Hawkins Creek qualifies as “deterioration by the elements,” High Point does not explain how relocating or extending the Dock is not a material alteration of its basic character. We agree with the district court: High Point’s argument that the “basic character” of a structure encompasses just the types of materials used and an object’s general purpose, but not its design or location, “is strained.” Indeed, even High Point concedes that a structure’s basic character can depend in some instances on “how the structure fit[s] within its environment.” Given the wilderness-preservation goals Congress had in mind for the Cumberland Island National Seashore, we view the Dock’s footprint and location in the natural environment as a rather significant aspect of its “basic character.”

Nor does High Point’s reliance Calhoun, GA NG, LLC v. Century Bank of Georgia, 320 Ga.App. 472, 740 S.E.2d 210 (2013), provide precedent for authorizing what the deed’s language does not. High Point invokes Calhoun for the proposition that easements can and must be relocated if the relevant contract language contemplates such relocation, even if, as is the case here, the relocation of an easement is not specifically mentioned in the deed. But Calhoun does no more than require compbance with the parties’ agreement as expressed in the contract at issue.

In Calhoun, the holder of Tract 2 granted an easement to the holder of Tract 1 to use “sidewalks, entrances, drives, lanes, service drives and parking areas, which are now or may hereafter from time to time be constructed and used for pedestrian and vehicular traffic.” Calhoun, 740 S.E.2d at 213 (emphasis omitted). The conveyance also allowed each tract owner “the right to expand, alter, modify all or part of the buildings now or hereafter constructed on said tracts, or develop said tracts in any manner they see fit.” Id. (emphasis omitted). At the time of the suit, a bank acquired Tract 2, the servient estate, and Calhoun owned Tract 1, the dominant estate. Id. at 211. The bank wanted to build a convenience store and gas station that would have altered or eliminated some existing easement areas used by Calhoun on Tract 2. Id. at 212.

The Georgia appellate court upheld a grant of summary judgment in the bank’s favor. After first noting that under Georgia law, both estates must consent to alteration of a fixed easement, the court also observed that a “servient estate has the right to relocate an easement if the instrument creating the easement so provides.” Id. (quoting SunTrust Bank v. Fletcher, 248 Ga.App. 729, 548 S.E.2d 630, 633 (2001)). Although the conveyance did not expressly discuss relocation of existing easements, the court held that the parties’ language contemplated that the sidewalks and parking areas on Tract 2 might change over time and that the broad reservation to develop the tracts in any manner permitted the bank’s development so long as Calhoun maintained its easement over any new such areas established on Tract 2. Id. at 213-14.

High Point likens the bank’s removal of current parking areas to the siltation of the Dock in that, in both cases, events have caused use of the existing easement to become impractical. In High Point’s view, Calhoun establishes that this type of impracticality requires relocation of a current easement, even when the language of the conveyance does not specifically address relocation of easements.

But rather than helping High Point, Calhoun merely affirms that the language of the parties’ contract controls. The Georgia court did not rest its analysis in Calhoun on impracticality. Instead, it construed the broad language of the conveyance to demonstrate the parties’ contemplation and intent that existing easements would require relocation over time. Indeed, as we understand the contract at issue in Calhoun, the language in granting “the right to expand, alter, modify all or part of the buildings now or hereafter constructed, or develop said tracts in any manner they see fit” effectively would have been meaningless if the servient estate could not also relocate easements affected by exercise of the ser-vient estate’s right to expand, alter, modify, and develop. And the contract’s use of the word “or” in the phrase “or may hereafter ... be constructed,” as opposed to use of the term “and” in that phrase, contemplated that easements that existed at the time that the contract was executed might not exist in their then-current form later.

But the deed here is far more restrictive in terms of what it permits High Point to do on the property. It expressly constrains High Point’s use to the existing dock. It also requires the Park Service to approve significant alterations of the property’s structures. And it unmistakably reflects the parties’ intent that the Dock (and other property) will be used “with the knowledge that the property is intended by the United States Congress to be preserved in its natural state.” Unlike in Calhoun, the deed here contains no language that implies that the parties agreed to permit High Point’s unilateral relocation or extension of the Dock. And absent language expressly or impliedly permitting movement of a fixed easement, Georgia law precludes unilateral movement. See Herren v. Pettengill, 273 Ga. 122, 538 S.E.2d 735, 736-37 (2000).

In short, under the plain language of the deed, nothing allows High Point to relocate or extend the Dock. We therefore affirm the district court’s determination that High Point has no reserved right to unilaterally relocate or extend the Dock.

B. The Park Service’s denial of permission to relocate or extend the Dock was not arbitrary or capricious and did not exceed its authority

Our conclusion that High Point has no unilateral right to move or extend the Dock does not end our inquiry. The deed allows High Point to seek permission from the Park Service for new construction or alterations, and High Point maintains that the Park Service’s denial of that permission was arbitrary and capricious and exceeded the Park Service’s authority. Specifically, High Point claims that the Park Service denied its request based on a misapplication of the Wilderness Act and a misapprehension of the Park Service’s regulatory authority over tidal marshlands. We disagree.

1. The Wilderness Act forecloses relocation of the Dock

Congress enacted the Wilderness Act “to secure for the American people of present and future generations the benefits of an enduring resource of wilderness.” 16 U.S.C. § 1131(a). To meet this purpose, the Act allows for the designation of wilderness areas that “shall be administered for the use and enjoyment of the American people in such manner as will leave [the lands] unimpaired for future use and enjoyment as wilderness,” and provides a framework for the protection and preservation of designated areas. Id. The Act further instructs that the agency assigned to manage such protected areas shall manage the property in its charge in a manner designed to preserve the “wilderness character” of the area:

Except as otherwise provided in this chapter, each agency administering any area designated as wilderness shall be responsible for preserving the wilderness character of-the area and shall so administer such area for such other purposes for which it may have been established as also to preserve its wilderness character. Except as otherwise provided in this chapter, wilderness areas shall be devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and historical use.

16 U.S.C. § 1133(b) (emphasis added). In furtherance of these goals, the statute severely restricts activities and structures in wilderness areas:

Except as specifically provided for in this chapter, and subject to existing private rights, there shall be no commercial enterprise and no permanent road within any wilderness area designated by this chapter and, except as necessary to meet minimum requirements for the administration of the area for the purpose of this chapter (including measures required in emergencies involving the health and safety of persons within the area), there shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical transport, and no structure or installation within any such area.

16 U.S.C. § 1133(c) (emphasis added). Indeed, the Wilderness Act categorically prohibits structures in wilderness areas subject to two exceptions: a private-rights exception and an administrative-needs exception. Id.; see Wilderness Watch v. Mainella, 375 F.3d 1085, 1093 (11th Cir. 2004).

In Mainella — a case that also involved Cumberland Island — a panel of this Court construed § 1133(c)’s prohibition on motor-vehicle use in light of the administrative-needs exception. First, the panel determined that Congress had spoken clearly and unambiguously in the Wilderness Act, obviating any need for deference to the Park Service’s construction of the statute. See 375 F.3d at 1091 & n.7. The panel then observed that the clear purpose of the Act was the preservation of untrammeled natural areas. Id. at 1091-92. In rejecting the Park Service’s practice of allowing of tourists to “piggyback” on official vehicle trips to Cumberland’s historical sites, the Court held that § 1133(c)’s prohibitions were “categorical” “except ‘as necessary’ ” for minimum administration of the wilderness area, and in no sense could a van filled with tourists “be construed as ‘necessary’ to meet the ‘minimum requirements’ for administering the area ‘for the purpose of [the Wilderness Act].’ ” Id. at 1092-93.

High Point relies on the private-rights exception here rather than the administrative-needs exception discussed in Mainella, but the distinction is immaterial. Given the stringent, preservation-oriented purposes of the Wilderness Act, this Court has found the prohibitions in § 1133(c) to be categorical and subject to only very limited, narrow exceptions. Mainella, 375 F.3d at 1092-93. High Point cannot show that the narrow private-rights exception to the Wilderness Act’s strong preservation purposes applies any more than the Park Service could show in Mainella that the administrative-needs exception relieved the Park Service of its obligations under the Wilderness Act.

To overcome the Wilderness Act’s clear purposes, High Point contends that the private-rights exception not only permits but in fact obligates the Park Service to approve relocation or extension of the Dock. It reasons as follows: because, in High Point’s view, High Point has retained a private right of deep-water access to Cumberland Island, the Park Service must accommodate construction that advances that allegedly existing private right.

This argument is based entirely on a faulty premise — that High Point retained a private right of deep-water access to Cumberland Island. But, in fact, as we have explained, High Point reserved no such right in the deed conveying its property. So High Point simply has no “existing private rights” that fall within the exception to § 1133(c)’s categorical prohibition on the construction of structures in wilderness areas.

The law is clear: with the exception of the existing Dock (in which High Point does have an “existing private right[]”), “there shall be ... no structure or installation” within any wilderness area. The Wilderness Act’s clear prohibitions relieved the Park Service of any discretion to grant High Point’s requests to relocate or extend the Dock. Because the Park Service’s denial of High Point’s requests rests on a correct view of the Wilderness Act, the district court did not err in concluding that the Park Service’s decision was neither arbitrary nor capricious.

£ The Park Service is authorized to rep-úlate the marshlands

In an attempt to avoid the barriers of the Park Service and the Wilderness Act, High Point claims that it can achieve its objectives solely by extending the marshlands portion of the Dock without altering the wilderness-bound upland part of the Dock in any manner. In High Point’s view, even if the Wilderness Act prohibits construction in the uplands portion of Cumberland Island that was designated as “wilderness,” the Park Service lacks authority to deny any modification or extensions of that portion of the Dock extending over the marshlands that were designated as “potential wilderness.” As High Point’s argument goes, the Park Service has no regulatory authority over the marshlands because the State of Georgia— rather than the federal government — holds title to them, and Congress intended that the Park Service exercise authority over only the federally owned lands at Cumberland.

The law does not support High Point’s claim. Regardless of who actually owns the marshlands, federal law unambiguously displays congressional intent to empower the Park Service to regulate the marshlands designated as potential wilderness on Cumberland Island. In particular, the Park Service’s establishing law and the Seashore Act make this fact abundantly clear.

The Park Service’s establishing law, in effect at the time that High Point made its requests, extended the Park Service’s regulatory power to federal “areas”; it did not mention federal ownership:

The service thus established shall promote and regulate the use of the Federal areas known as national parks, monuments, and reservations hereinafter specified, ... by such means and measures as conform to the fundamental purpose of the said parks, monuments, and reservations, which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

16 U.S.C. § 1 (emphasis added), repealed by Act of Dec. 19, 2014, Pub. L. No. 113-287, § 7, 128 Stat. 3094, 3272-73; see also 16 U.S.C. § 3 (repealed 2014) (providing that the Secretary of the Interior “shall make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks, monuments, and reservations under the jurisdiction of the National Park Service”).

As several of our sister circuits have recognized, this regulatory authority extends to non-federally owned land encompassed within national park boundaries. See, e.g., Dunn-McCampbell Royalty Interest, Inc. v. Nat’l Park Serv., 630 F.3d 431, 442 (5th Cir. 2011); United States v. Stephenson, 29 F.3d 162, 164 (4th Cir. 1994) (“The primary inquiry in determining the applicability of Park laws to a given area must therefore be whether that area is within the statutory boundaries of the Park, not whether [the Park Service] holds title to the land in question.”); Free Enter. Canoe Renters Ass’n of Mo. v. Watt, 711 F.2d 852, 856 (8th Cir. 1983); see also United States v. Brown, 552 F.2d 817, 821-22 (8th Cir. 1977) (holding that the broad authority granted to Congress by the Constitution’s Property Clause authorizes the federal government “to regulate activities on non-federal public waters in order to protect wildlife and visitors on [federal] lands”).

In addition to the Park Service’s general regulatory authority, the Seashore Act gives the Park Service regulatory authority over non-federally owned lands within the bounds of the Cumberland Island National Seashore. In establishing the Cumberland Island National Seashore, the Seashore Act placed the marshlands within the boundaries of the federal park. It further authorized the Park Service to “administer! ], protect!], and develop[]” the seashore in accordance with the Park Service’s establishing statutes. 16 U.S.C. § 459i-5(a). And it empowered the Park Service to use any other available statutory authority for conservation and management of the island’s natural resources, instructing that all land within the park be managed with an eye towards preserving non-recreational areas in their “primitive state.” Id.; 16 U.S.C: § 459i-5(b).

Besides the fact that the marshlands fall within the boundaries of the Cumberland Island National Seashore, the bill designating Cumberland Island as wilderness identified the marshlands under the Dock as “potential wilderness.” See Act of Sept. 8, 1982, Pub. L. No. 97-250, § 2(a), 96 Stat. 709. And the House and Senate reports accompanying the designating bill expressed Congress’s desire that “[t]o the extent it can legally do so, the National Park Service is expected to manage the potential wilderness areas as wilderness, according to the provisions of the Wilderness Act of 1964.” H.R. Rep. No. 97-383, at 4-5; S. Rep. No. 97-531, at 3. The reports expressed this intent even though they acknowledged that the State of Georgia- — ■ and not the United States — held title to the intertidal marshlands designated as potential wilderness. See H.R. Rep. No. 97-383 at 4, 6; S. Rep. No. 97-531, at 3, 4-5.

Pursuant to its authority under these statutes, the Secretary of the Interior has promulgated regulations governing the national park system. Those regulations apply to, among other things, “submerged lands, tidelands, [and] lowlands” within national parks, regardless of the ownership of such areas:

Waters subject to the jurisdiction of the United States located within the boundaries of the National Park System, including navigable waters and areas within their ordinary reach (up to the mean high water line in places subject to the ebb and flow of the tide and up to the ordinary high water mark in other places) and without regard to the ownership of submerged lands, tidelands, or lowlands[.\

36 C.F.R. § 1.2(a)(3) (emphasis added). As relevant here, the Park Service regulations prohibit private parties from “[e]on-structing or attempting to construct a ... boat' dock ... upon[,] across, over, through, or under any park” without permission. 36 C.F.R. § 5.7.

In addition, as a matter of policy, the Park Service manages potential wilderness areas on Cumberland Island as wilderness to the extent possible. See Mainella, 375 F.3d at 1088 n.2.

The upshot of this litany of statutes and regulations is that, contrary to High Point’s assertions and characterizations, Congress clearly intended for the Park Service to exercise protective authority over those tidal marshlands within the boundaries of Cumberland Island National Seashore that have been designated as potential wilderness, including those under the Dock, with full recognition that the marshlands are not owned by the United States. So even accepting that High Point can parse the Dock into uplands and marshlands parts and extend the latter without impacting the former, the Park Service was properly empowered — and indeed obligated — to deny High Point’s request to do so based on its authority and responsibility to protect the marshlands within Cumberland Island National Seashore as wilderness.

IV. Conclusion

For these reasons, we AFFIRM the judgment of the district court.

APPENDIX

      . Steve Cropper & Otis Redding, (Sittin' On) The Dock of the Bay, on The Dock of the Bay (Volt/Atco 1968). Redding tragically died in a plane crash in December 1967, just two. days after he finished recording "(Sittin’ On) The Dock of the Bay," so the song was released posthumously on January 8, 1968. Marc Myers,' Then I Watch 'Em Roll Away Again, Wall St. J. (Jan. 3, 2013 6:20 PM), http:// www.wsi .com/articles/SB 10001424127 887323320404578213633398825300. It later won the 1968 Grammy Awards for the Best Rhythm & Blues Male Vocal Performance and the Best Rhythm & Blues Song. RockPo-plnfo Song Facts: (Sittin’ On) The Dock of the Bay, RockPopInfo, http://www.rockpopinfo. com/songs/sittin-on-the-dock-of-the-bay-2/ song-facts (last visited Aug. 2, 2016).

      . Cropper & Redding, supra note 1.

      . In this opinion, the term "uplands” refers to those generally dry areas of Cumberland Island above the high-tide water line.

      . The term "marshlands” includes those low-lying grassy areas that are regularly flooded by the tides.

      . The parties agreed to convey the land through the non-profit Trust for Public Land ("TPL”). The use of TPL as an intermediary has no bearing on the issues in this appeal.

      . The deed specified the following reservation:
      SUBJECT to the reservation of use by High Point, Inc., and its shareholders, of the area presently known as Brick-Kiln Dock located on Hawkins Creek in Tract N-5 Cumberland Island, Georgia, free from unreasonable interference by GRANTEE, its successors and assigns, with such use, nor shall GRANTEE, its successors and assigns, be responsible for maintenance, repair, or any liability for its use[.]

      . The deed’s "Preservation” clause provides,
      After the expiration of such period of four (4) years from the date of this conveyance, High Point, Inc., and its shareholders, shall not add to nor materially alter the character of existing improvements or structures contained within the High Point Compound, other areas where High Point, Inc., and its shareholders, reserve easements and rights of use and occupancy nor perform any néw construction or change the topography of the land without first having obtained the permission in writing of the GRANTEE, its successors and assigns. Any building or structure damaged or destroyed by fire or other casualty or deteriorated by the elements, or wear and tear, may be maintained, repaired, renovated, remodeled, or reconstructed so long as the basic character of the building or structure is not materially altered, from that existing as of the date of expiration of such four (4) year period as specified above.

      .The deed’s "Maintenance” section provides, in relevant part,
      With respect to the High Point Compound and areas in which High Point, Inc., and its shareholders, reserve easements and rights of use and occupancy, High Point, Inc., and its shareholders, shall have the right to make normal maintenance and upkeep of the property, to make modern modifications to existing structures and outbuildings, to make repairs and reconstruction to comply with safety or other sanitation codes, to replace roofing or siding, to shore up structures threatened by subsidence of soil and to repair or replace utility lines....

      . The "intent” provision of the deed states,
      Intent. The use of High Point Compound and use of the areas for which easements and rights of use and occupancy are reserved, shall be limited to non-commercial residential purposes with the knowledge that the property is intended by the United States Congress to be preserved in its natural state as a part of Cumberland Island National Seashore....

      . Both parties agree that the Park Service’s denial of permission to relocate or replace the Dock represents a final agency decision under the APA.

      . While we do not rely on extrinsic evidence because the language of the deed is clear, we nonetheless note that both parties were well aware of the importance of deep-water access and the access risks posed by the dynamic environment of Cumberland’s marshlands. We are not at liberty to expand the parties' bargain.

      . For this reason, we do not reach High Point’s alternative argument that the language is ambiguous. But we nonetheless note that even High Point identifies no part of the deed’s language that it suggests is actually ambiguous regarding its alleged right to relocate the Dock. Under Georgia law, a contract ''is ambiguous if it contains a 'duplicity, indistinctness, an uncertainty of meaning or expression' that makes it susceptible to several reasonable interpretations.” Begner, 428 F.3d at 1005 (citing Holcim (US), Inc. v. AMDG, Inc., 265 Ga.App. 818, 596 S.E.2d 197, 200 (2004)).

      . The 2014 law recodified the Park Service statutes as positive law in Title 54 of the United States Code. Although the new statute modified the prior statutes in many ways, the relevant language here remains materially unchanged. See 54 U.S.C. § 100101(a). In addition, the repealing legislation specified that any repealed sections were repealed "except with respect to ... proceedings that were begun before the date of enactment of this Act[.]” § 7, 128 Stat. at 3272-73. Because High Point’s lawsuit predates the recodification, the prior version's language applies to this case.

      . High Point has not contested the constitutional power of Congress to authorize federal regulation of non-federally owned park lands. Instead, High Point argues only that, in this case, Congress did not intend to authorize federal regulation of state-owned marshlands on Cumberland Island.

      . High Point asserts that § 1.2(a)(3) does not apply to the marshlands, based on the language of 36 C.F.R. § 1.2(b). That is simply incorrect. Section 1.2(b) provides, in relevant part, "The regulations contained in [Part 1] ... of this chapter do not apply on non-federally owned lands and waters ... located within National Park System boundaries, except as provided in paragraph (a).... ” (emphasis added). Put simply, § 1.2(b) unambiguously exempts § 1.2(a)(3) from its grasp.