united states district court eastern district of new … · 2011-03-01 · case 1:11-cv-00226-env...
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Case 1:11-cv-00226-ENV -VVP Document 9 Filed 03/01/11 Page 1 of 73
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------ x
BROOKLYN HEIGHTS ASSOCIATION, INC., BY ITS PRESIDENT JANE MCGROARTY,
FULTON FERRY LANDING ASSOCIATION, BY ITS PRESIDENT JOAN ZIMMERMAN,
THE NEW YORK LANDMARKS CONSERVANCY,
Plaintiffs,
- vs -
NATIONAL PARK SERVICE,
KENNETH SALAZAR, Secretary of the U.S. Department of the Interior, and
BROOKL YN BRIDGE PARK DEVELOPMENT CORPORATION,
Defendants.
INTRODUCTION
x
Case No: 11 CV 0226 (ENV)
AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Jury Trial Demanded
1. Plaintiffs seek injunctive and declaratory relief to protect national landmarks that,
as a result of arbitrary and capricious decisions by the National Park Service ("NPS"), are being
converted from federally protected public parkland to private use. NPS ignored its own rules and
procedures, buckled under improper political pressure, and misused this court proceeding to
shield itself while conducting a sham review process that ultimately resulted in a clearly
unlawful determination.
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2. This Complaint concerns the illegal disposition of the renovated shell of a Civil
War-era tobacco inspection warehouse ("Tobacco Warehouse"), which was placed on the
National Register of Historic Places in June 1974, and an adjacent landmark, the "Empire
Stores." Both structures reside in the Empire Fulton Ferry State Park, between the Manhattan
and Brooklyn Bridges ("Fulton Ferry Park").
3. For many years, the Brooklyn Heights community, including Plaintiffs, have
labored and lobbied to save the Tobacco Warehouse from demolition. In 2000, with input from
Plaintiffs, a plan was adopted to stabilize the Tobacco Warehouse, refurbish the surrounding
parkland, and make it available to the public. Approximately 15% of the monies used for this
project came from a federal grant, the Land and Water Conservation Fund, that proscribes
alienation of any property sitting within the federal-grant boundary. This boundary includes the
Tobacco Warehouse and an adjacent historic building, the Empire Stores.
4. Between 2003 and 2009, the Tobacco Warehouse was open to the public for
outdoor recreational opportunities, and the Empire Stores housed public restrooms for Park goers
and an office for park services.
5. In November 2008, the New York State Office of Parks, Recreation, and Historic
Preservation ("State Parks")made a secret application to NPS to remove the Tobacco Warehouse
and the Empire Stores from the federally protected boundary, thus allowing development by
commercial interests. In that application, State Parks falsely claimed that the Tobacco
Warehouse was "not suitable for nor used by the public for outdoor recreational opportunities."
State Parks also did not disclose the myriad of outdoor recreational activities staged at the
Tobacco Warehouse over the preceding seven years, nor did it disclose that the Empire Stores
was used by thousands of Park goers for emergencies, restroom use, and that the operations of
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the park were coordinated in that structure. In short, State Parks misled NPS into believing these
old relics served no apparent purpose when, in fact, they were the cherished and accessible focal
points of Fulton Ferry Park.
6. Without checking any of the facts, NPS approved the removal of the Tobacco
Warehouse and the Empire Stores from the federally protected boundary. NPS cited no authority
whatsoever for this decision. NPS did so despite clear regulations and its own interpretive
guidance that "No changes may be made to [the federal grant boundary] after final
reimbursement unless the project is amended as a result of an NPS approved conversion."
The conversion process -- a fairly complex process used, for example, to authorize the
construction of Yankee Stadium in protected parkland - was not required by the NPS decision.
7. Plaintiffs learned of State Parks' secret application, and NPS's unlawful decision,
only through a Freedom of Information Act request in 2010. At that time, Plaintiffs promptly
petitioned NPS to reverse the decision and to restore the Tobacco Warehouse to the 6(f) map.
When NPS failed to act timely, Plaintiffs filed this lawsuit. l
8. Thereafter, NPS made various representations to Plaintiffs, including that:
• NPS's own 2008 decision to de-map the Tobacco Warehouse was without
precedent,
• NPS staffhad concluded that the decision should be overturned,
• Issuance of a decision (overturning the 2008 decision and restoring the
Tobacco Warehouse to federal protection) was imminent.
9. On that basis, NPS authorized the Department of Justice ("DOJ"), which acted
Until this Complaint, Plaintiffs had not challenged NPS's determination with respect to the Empire Stores.
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both as counsel for NPS in this action and as NPS's agent in the then-ongoing administrative
review, to notify this Court of its expectation that this lawsuit would be voluntarily dismissed as
moot.
10. Indeed, NPS had already authorized DOJ to provide a copy of an unsigned letter
to Plaintiffs and the Law Department of the City of New York (counsel for the Brooklyn Bridge
Park Corporation, which is not a party to this proceeding). This letter, authored by Wayne Strum
(Acting Chief, State and Local Programs Division ofNPS), concluded that NPS's 2008 decision
was "not justified," and it directed State Parks to restore the federally protected map to include
the Tobacco Warehouse.2
11. When the City of New York received NPS's decision, it sprung into action. At
the highest levels, City officials lobbied both NPS and the Department of the Interior. Suddenly,
NPS made an abrupt about-face. Closing the administrative record before Plaintiffs had a chance
to respond to submissions by State Parks and the City, in violation of NPS's own proscribed
procedures, and over DOl's "forceful objection,"3 the very same NPS official who penned the
unsigned letter - Wayne Strum - issued a new letter on February 14, 2011, affirming the 2008
decision, which he had previously disavowed.
12. In doing so, Mr. Strum used a new and different rationale to justify re-mapping
the Tobacco Warehouse, choosing not to address the false information previously provided by
State Parks about the suitability of the Tobacco Warehouse for "outdoor recreational
2 Defendant Brooklyn Bridge Park Development Corporation, a subsidiary of the Empire State Development Corporation, is the successor-in-interest and the current title holder to the Tobacco Warehouse.
3 The Assistant U.S. Attorney handling the matter said that NPS was acting, in the administrative proceeding, over his "forceful objection."
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opportunities." In short, NPS has allowed the Tobacco Warehouse to remain excluded from the
federally protected map - again without requiring the conversion process. NPS's decision did
not address the Empire Stores (and thus the 2008 decision remains unchanged).
13. By abandoning the rationale of the 2008 decision, NPS effectively conceded that
the previous determination was wrong, as Plaintiffs have contended all along. In effect, NPS' s
decision on February 14 is a concession of liability under the Third Cause of Action (at ~ 242
below) under the Administrative Procedures Act.
14. More troubling, the decision by Mr. Strum, the supposed gatekeeper of federally
protected parks, has embraced a startling proposition. Now, no matter how many times a
federal-grant recipient has certified a federal boundary as a condition precedent to receiving
federal-grant monies, and no matter how long the park has been used as open parkland, a federal
grant recipient that subsequently decides to tum the park over to developers can now simply
claim: "we made a mistake." Those four words, according to NPS's decision, can eviscerate the
clear statutory protections that have endured for generations. NPS's unlawful determination, if
upheld, will only encourage grant recipients to lobby NPS to cherry-pick misleading facts and
rubber-stamp future giveaways of federally-protected parkland.
15. NPS's decision violates even its own founding principle to "promote and regulate
the use of the Federal areas known as national parks, monuments, and reservations ... to
conserve ... historic objects ... 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. And, by disenfranchising Plaintiffs, and stealing away their right to participate in
the administrative process, NPS shamefully violates its guiding principle to "provid[ e]
opportunities for citizens to participate in the decisions and actions of the National Park
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Service. "
17. In the meantime, the City of New York has been busy preparing to irreversibly
alter the Tobacco Warehouse, and to allow private development of the Empire Stores as well.
The City is making plans, for example, to sign over rights to the Tobacco Warehouse to a private
tenant and is preparing to bore holes through the foundation of the Tobacco Warehouse as the
first step in the development process.
18. This action seeks to challenge the 2008 and 2011 NPS decisions and restore the
federally protected park boundary as finalized in 2003, when the federal grant closed, thus
protecting the Tobacco Warehouse and Empire Stores from development.
JURISDICTION AND VENUE
19. Plaintiffs bring this action pursuant to the Land and Water Conservation Fund Act
("LWCFA"), 16 U.S.C. § 4601-8, its implementing regulations, 36 C.F.R. Part 59; the National
Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332, its implementing regulations, 40 C.F.R.
Part 1502, the Administrative Procedure Act, 5 U.S.C. §§ 550-559,701-706, Section 106 of the
National Historic Preservation Act of 1966 ("NHPA"), 16 U.S.C. § 470a to 470w-6, and the
Public Trust Doctrine. The Court has subject matter jurisdiction over the action pursuant to 28
U.S.C. § 1331 (federal question) and § 1361 (mandamus), supplemental jurisdiction over the
Public Trust Doctrine claim pursuant to 28 U.S.C. § 1367(a), and may issue a declaratory
judgment and grant further relief pursuant to 5 U.S.C. §§ 702 and 706 and 28 U.S.C. §§ 2201
and 2202.
20. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(1)-(2) .. The
property which is the subject ofthis action is located in this District. Plaintiffs Brooklyn Heights
Association and Fulton Ferry Landing Association have their offices, staff, and members within
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the Borough of Brooklyn.
PARTIES
21. Plaintiff The New York Landmarks Conservancy ("NY Landmarks
Conservancy") is a non-profit organization dedicated to preserving and revitalizing New York's
historically and culturally significant buildings. Its mission is to ensure that the landmarks of
New York - homes, schools, businesses, cultural institutions, theaters and houses of worship -
will serve the citizens of New York for generations to come. On that basis, Plaintiff NY
Landmarks Conservancy opposes the unlawful alienation of the Tobacco Warehouse. Plaintiff
NY Landmarks Conservancy also believes that development of the Empire Stores should not be
permitted to proceed unless NPS requires City and State officials to follow the conversion
process, as was required of the New York Yankees when they sought to build their new stadium
within federally protected parkland.
22. Plaintiff Brooklyn Heights Association, Inc. ("BHA") is a non-profit corporation
established in 1910 and chartered in the State of New York with a mission to maintain and
improve the community of Brooklyn Heights. The BHA opposes the illegal taking of public
parkland in Brooklyn for private benefit, particularly after the community has consistently fought
to preserve the historic character of the Fulton Ferry Park and its constituent structures -
including the Tobacco Warehouse - for over fifty years. Membership of the BHA
predominantly consists of residents of the Brooklyn Heights community who enjoy and depend
on the Fulton Ferry Park and the Tobacco Warehouse for the environmental, health and
recreational benefits that it provides to Brooklyn and its residents. Plaintiff BHA also believes
that development of the Empire Stores should not be permitted to proceed unless NPS requires
City and State officials to follow the conversion process.
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23. Plaintiff Fulton Ferry Landing Association ("FFLA") is a non-profit volunteer
community organization dedicated to preserving the historic character and architecture of the
Fulton Ferry Landing area, and improving the quality of life for those who work and life in the
area. Formed in 1988 as an advocacy group for its community, the FFLA seeks to protect the
historic character of its neighborhood, including safeguarding the Tobacco Warehouse from
construction and conversion. The FFLA supports preserving the current structure of the Tobacco
Warehouse as an open space suitable for outdoor recreational activity, seeks to maintain its
historic character as public parkland, and opposes its privatization. Plaintiff FFLA also believes
that development of the Empire Stores should not be permitted to proceed unless NPS requires
City and State officials to follow the conversion process.
24. Defendant National Park Service ("NPS") is a federal government agency and a
bureau of the United States Department of the Interior ("DOl"). NPS is responsible for the
management and administration of the National Park System, including the responsibilities
delegated to it by the Secretary of the Interior for administration of the Land and Water
Conservation Fund.
25. Defendant Kenneth Salazar is Secretary of the United States Department of the
Interior, and is named here only in his official capacity. The Secretary is responsible for the
Department's compliance with NHPA and NEPA, and for the administration and enforcement of
the LWCFA.
26. Defendant Brooklyn Bridge Park Development Corporation ("BBPDC") is a
subsidiary of New York State Urban Development Corporation doing business as Empire State
Development Corporation, a public benefit corporation of the State of New York. Pursuant to
July 8, 2010 Letters Patent, BBPDC holds title to the Tobacco Warehouse and the Empire Stores.
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On information and belief, BBPDC has leased both structures to the Brooklyn Bridge Park
Corporation ("BBPC").
FACTUAL BACKGROUND
A. Fulton Ferry Park
27. The borough of Brooklyn was born at the location of a ferry landing, which used
to be located on the patch of ground next to the Brooklyn Bridge, at what is now Fulton Street.
Ferry service to and from this landing began in the 18th century. The historic importance of this
site to the Borough of Brooklyn and the City of New York cannot be overstated. As the New
York City Landmarks Preservation Commission succinctly explained in its 1977 Historic
Designation Report, "This was the place where Brooklyn began."
28. It was from this ferry landing that General George Washington evacuated his
troops on August 29-30, 1776, after suffering a defeat by 20,000 British soldiers in the Battle of
Long Island. The ferry was instrumental to Brooklyn's commercial growth. Steam ferry service
contributed mightily to this growth. Robert Fulton's Ferry Service ran a steam-powered ferry in
the years between 1814 and 1924. The Fulton Ferry brought goods and people into the
flourishing commercial district.
29. After the opening of the Brooklyn Bridge in 1883, the ferry service went through
a period of marked decline. After the ferry service ended in 1924, the Fulton Ferry Landing
suffered a period of neglect.
30. As of the mid 1960s, Plaintiff BHA, in later cooperation with the Landmarks
Preservation Commission, began a decade-long campaign to tum the historic Fulton Ferry
Landing and its neighboring historic structures, the Tobacco Warehouse and Empire Stores, then
owned by Consolidated Edison, into a protected historic district and public park. Under the
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leadership of Beverly Moss Spatt and Morris Ketchum, Jr., then the Chair and Vice-Chair of the
Landmarks Preservation Commission respectively, a Historic Designation Report was completed
in 1975, which recounted the rich history of the location, including the Tobacco Warehouse.
Based on that report, the Landmarks Preservation Commission designated the Fulton Ferry
Historic District on November 25, 1975.
31. After the Board of Estimate, at the insistence of Consolidated Edison, returned the
designation without prejudice, the Landmarks Commission in 1977 issued a new designation
report and in June 1977 once again designated the Fulton Ferry Historic District, which this time
was approved over Consolidated Edison's opposition.
32. Commencing in 1976, Plaintiff BHA pressed Governor Hugh Carey and State
Parks Commissioner Orin Lehman to acquire the Tobacco Warehouse and Empire Stores for
public park purposes, in order to remove them from Consolidated Edison's unsympathetic
ownership and thereby assure their permanent preservation.
33. In October 1978, the New York State Legislature allocated the first seed money
($100,000) for a park at the Fulton Ferry, and Governor Hugh Carey announced the creation of
the Fulton Ferry Park. The park was completed in approximately 1987.
34. These successful efforts gave rise to the creation of a new organization - Plaintiff
FFLA. Created in 1988, Plaintiff FFLA is a volunteer run community organization, formed to
preserve the historic character and architecture of Fulton Ferry Landing, maintain and improve
the quality of life for those who live and work in the area, and promote comprehensive
contextual planning in the continued development of this unique area and the adjacent historic
communities.
35. Since 1999, the State has affirmed its commitment to the vision of the Tobacco
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Warehouse as an element of the greater Brooklyn Bridge Park. In the Memorandum of
Understanding between the State of New York and the City of New York of 2002 regarding the
Brooklyn Bridge Park, as well as in the Park's General Project Plans of 2005 and 2006, the
Tobacco Warehouse is consistently featured as an integral part of the Brooklyn Bridge Park's
protected parkland.
36. The Brooklyn Bridge Park Conservancy, previously the Brooklyn Bridge Park
Coalition, was created in 1987 and has worked for over twenty years to support the creation of
the Brooklyn Bridge Park, a vision which has included the Tobacco Warehouse since 2000. The
Conservancy is made up of more than sixty civic and environmental groups. The Conservancy
has been responsible for sponsoring many of the public recreational uses of the Tobacco
Warehouse, as described in paragraphs 83-87.
37. Since their creation, the Fulton Ferry Park, and the Fulton Ferry Historic District,
have always contained the Tobacco Warehouse. Further, since Fulton Ferry Park's inclusion in
the larger Brooklyn Bridge Park, the Tobacco Warehouse has always been envisioned as an
integral part of this protected parkland.
B. The Tobacco Warehouse
38. The Tobacco Warehouse, originally built in approximately 1870 as a tobacco
storage and customs-inspection center, sits within the Fulton Ferry Park, just north of the
Brooklyn Bridge. The landmark 19th century warehouse is a vivid reminder of the shipping
activity that once defined the downtown Brooklyn waterfront.
39. The Tobacco Warehouse is a unique space In New York City. Nationally
recognized as a historic landmark, it has been described as one of "the few surviving examples of
[its] type." New York Magazine, http://nymag. com/listings/attraction! empire-fulton-ferry-state-
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park! (last visited Feb. 28, 2011). With the Brooklyn Bridge looming above its roofless walls,
the 25,000 square foot space evokes the feeling of an unfinished church or Welsh ruins of an
abbey in modem-day Brooklyn. Indeed, the Tobacco Warehouse has been regularly used for
open outdoor events by members of the public, including weddings, corporate functions and
parties due to the unique character of this historic structure. Prior to 2010, it was open to public
access and hosted dozens of community and arts events. See Attachment A (depictions of the
Tobacco Warehouse during outdoor, recreational events).
40. The Tobacco Warehouse was placed on the United States National Register of
Historic Places on June 28, 1974, and was included in the Fulton Ferry Historic District by the
Landmarks Preservation Commission in 1977.4
41. The larger community, and many groups and individuals, are primarily
responsible for saving the Tobacco Warehouse from two plans to demolish it.
42. In 1968, the City of New York planned to relocate the Fort Greene Wholesale
Market to the site, which would have required demolition of the Tobacco Warehouse and the
adjacent Empire Stores. Plaintiff BHA, in coordination with the Municipal Arts Society and in
conjunction with thousands of community members, convinced the City to abandon that plan.
43. However, after those initial efforts in the 1960s, more years of neglect lay in store
for the Tobacco Warehouse. Trees and weeds sprouted inside while the space remained
effectively abandoned. On information and belief, the Tobacco Warehouse caught fire in or
around the late 1980s, causing its roof to collapse onto the grade level ground floor, leaving a
4 The National Register of Historic Places contains few similar examples of tobacco-storage warehouses in other states, the nearest one being in New Milford, Connecticut, which was placed on the National Register almost a decade after the Tobacco Warehouse in Brooklyn.
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number of columns, exterior walls and one main internal wall standing. Indeed, City officials
feared the state-owned building could collapse, causing injury.
44. It was clear, however - even in its derelict state - that the Tobacco Warehouse
was an elegant structure deserving of protection. Thus, in 1999, Plaintiff BHA, this time in
coordination with Plaintiff NY Landmarks Conservancy (and the Brooklyn Bridge Park
Coalition) convinced the New York City Buildings Department and State Parks to abandon
demolition.
45. In that regard, Plaintiff BHA, by its President Deidre Carson, and Plaintiff FFLA,
by its President Gary VanderPutten, met with and advocated before various officials, as did
noted attorney and preservationist Otis Pearsall. Mr. Pearsall, on behalf of Plaintiffs and others,
contacted State Parks directly, via a letter dated September 27, 1999, seeking assurances that the
Tobacco Warehouse would be saved from demolition. On behalf of State Parks, then
Commissioner Bernadette Castro made the following statements and representations in a letter
dated November 2, 1999: "I agree with your assessment ofthe importance of this structure ....
Our plans for redevelopment of [Fulton Ferry Park] have always incorporated the Tobacco
Warehouse .... "
46. With these assurances, the NY Landmarks Conservancy commissioned an
engineering study, which made recommendations to stabilize the Tobacco Warehouse. From
various sources, State Parks used over $2 million in public monies to remove the remaining roof
of the Tobacco Warehouse, restore the foundation, stabilize portions of the outer walls, fortify
the shoreline against erosion that was encroaching on the Empire Stores, create walkways, and
beautify and stabilize the surrounding parkland, making a unique open-air park, which
community groups and members of the public used for years for a wide array of outdoor
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activities. This work was done in 2001 and 2002, as was the L WCF A project.
47. Due to the extraordinary efforts by the local community, including Plaintiffs, the
Tobacco Warehouse was saved from demolition and restored to create a functional outdoor
venue. Far more than a remnant of history, the Tobacco Warehouse remained in continued use
as a public outdoor space until recently.
48. The Tobacco Warehouse, a walled-yet-outdoor structure, offers 25,000 square
feet of outdoor space, which includes an 18,000 square-foot, column-free footprint.
49. The site is a popular destination for outdoor recreational activities. Since 2002,
the Warehouse has hosted, free of charge, outdoor picnics, concerts, plays, shows, camp
programs, mini-golf, festivals, and dances. The Warehouse overlooks the Manhattan skyline and
is an ideal and unique location for these events. No other venue in Brooklyn can boast of the
distinctive experience that only the Tobacco Warehouse can provide. See Attachment A.
50. Together, State Parks and the community worked together to save the Tobacco
Warehouse and restore it to its current condition. Although private and State monies were the
primary sources to restore the Tobacco Warehouse and the surrounding park, federal monies also
played an important role.
c. Monies Used To Restore Fulton Ferry Park
51. As State Parks (in cooperation with Plaintiff BHA and others) was developing
plans to revitalize Fulton Ferry Park, it faced significant obstacles. The first serious challenge
was to fund the restoration of the Tobacco Warehouse itself. The second serious challenge was
to fund the restoration of the surrounding park, including reconstituting the shoreline to protect
against further shoreline erosion and collateral consequences of that erosion on the Tobacco
Warehouse and the Empire Stores.
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52. These overall goals were outlined in an Illustrative Master Plan ("IMP") from the
BBPDC, for the entire Brooklyn Bridge Park dated November 2000, as part of a multi-year
public planning process that was transparent, inclusive, and comprehensive, into which Plaintiffs
had significant input. Indeed, Plaintiffs attended various meetings with State Parks and the New
York City Department of Parks and Recreation ("City Parks") to review and revise the IMP. For
example, Plaintiff FFLA and its then-President Gary VanderPutten and Plaintiff BHA and its
Members JoAnne Witty and John Watts, attended a meeting with State Parks and City Parks on
September 9, 2000, to discuss the IMP, which included renovation of the Tobacco Warehouse.
Thus, Plaintiffs understood quite clearly that State Parks, in cooperation with City Parks and
various other agencies, would attempt to access various funding sources to ensure that the goals
of the overall IMP were accomplished.
53. The Brooklyn Bridge Park Provisions & Guidelines, drafted contemporaneously
with the IMP, made clear that the Tobacco Warehouse would remain an integral part of the park,
as an open-air botanical garden, suitable for other outdoor uses and events: "The walls of the
Tobacco Warehouse Building are reinforced and restored to form a walled botanical garden
within which small-scale ancillary uses would be permitted. New (internal) structures will not
extend above the height of the restored walls. Public entrances should allow for the after-hours
closing of the botanical garden .... The lawn in front of the Empire Stores and Tobacco
Warehouse is extended south to the base of the Brooklyn Bridge tower. Existing mature trees
should be taken into consideration and sparingly added to. The design of this area should have
regard for creating and enhancing views underneath the Brooklyn Bridge." A map, submitted
with the IMP, specifically includes the Tobacco Warehouse and the Empire Stores.
54. The IMP was accomplished through various funding sources.
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I. Renovation Of The Tobacco Warehouse Itself
55. To renovate the Tobacco Warehouse itself, State Parks ultimately used
approximately $600,000 from three sources: (a) the State Parks Infrastructure Fund, N.Y Code,
Art VI, § 97-MM, (b) the Clean Water/Clean Air Bond Act fund, and ( c) the Environmental
Quality Bond Act of 1986.
56. Title IX of the Environmental Quality Bond Act of 1986 allowed funding of
capital projects for historic-preservation purposes. N.Y. Envtl. Conserv. Law, Article 52, Title
IX. However, the enabling legislation contained a specific provision on alienation: "Real
property acquired, developed, improved, restored or rehabilitated by a municipality pursuant
to subdivision four of section 52-0901 of this title with funds made available pursuant to this title
shall not be sold or disposed of or used for other than public park purposes without the express ,
authority of an act of the legislature, which shall provide for the substitution of other lands of
equal fair market value and reasonably equivalent usefulness and location to those to
be discontinued, sold or disposed of, and such other requirements as shall be approved by the
commissioner." N. Y. Envtl. Conserv. Law, § 52-0907. The legislation also contained a legal
compliance requirement for all applicants for monies under the program: "Every applicant for
funds to be made available pursuant to this title shall comply with all applicable state, federal
and local laws. " Id. § 52-0911.
57. The Clean Water/Clean Air Act Bond Fund of 1996 was an available grant-based
funding source for, among other uses, capital projects that enhanced public recreational
activities. Id. § 56-0505. Unless State Parks invoked the public-recreation provision of the
Clean Water/ Clean Air Act Bond Fund as the basis for using those monies to restore the
Tobacco Warehouse, use of such monies would have been improper and unlawful.
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58. Of the total money used to restore the Tobacco Warehouse, more than 90% came
from these two sources - one of which precludes alienation, and one of which provides funds
only to those projects that are intended for public-recreation purposes.
59. In defending its application to de-park the Tobacco Warehouse in 2008, State
Parks cleverly claimed it had "removed the failing roof and stabilized the walls of the Tobacco
Warehouse ... entirely with state funding." Even this information is misleading. State Parks did
not include any information about the conditions and restrictions outlined above, nor did NPS
ask. Moreover, State Parks did not explain that federal grant monies were requested and
allocated for the Tobacco Warehouse, as described below. See Attachment B (State Parks Letter
to NPS, dated November 5, 2008).
ii. Federal Monies Under The LWFCA
60. To fund the rest of the project, as anticipated in the IMP, State Parks elected to
apply for a federal grant under the L WFCA. On or about October 18, 2001, State Parks sent a
grant application for L WCF A funds to the Regional Director of NPS. The application required
various attachments and certifications.
61. As part of the application for the L WCF A grant, State Parks provided a "Project
Description." The Project Narrative makes abundantly clear what Plaintiffs knew and believed:
that the grant was made as part of an overall plan to increase the public's access to, use of and
enjoyment of the Tobacco Warehouse.
62. The Project Narrative states as follows:
"The Cove area at Empire-Fulton Ferry State Park (Brooklyn, N.Y.) is located west of Main Street and the East River and extends to the easterly end of the pile supported concrete and wood promenade now under construction.
The Cove is approximately 400 feet in length along the
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shoreline and lies directly in front of the historic Empire Stores Building (7 buildings with party walls and a unified facade).
The Cove is a rubble strewn shore which in the 1970's had deteriorated wooden bulkheading and pile fields from previously removed piers. These structures and elements were subsequently removed by a Corps of Engineers "Harbor Drift Prevention Program" in the 1980's. The resulting unprotected shoreline was then "rip rapped" on an emergency basis with concrete brickbats and other large pieces of masonry debris. This "temporary" fix was needed to protect the Empire Stores water-frontage from erosion - which is only 40 feet wide at this point.
This project will remove the concrete and other debris and place a graded stone base, filter fabric and engineered rip rap so as to reestablish a stable shoreline in front of the Empire Stores Buildings. A hardsurface path will also be constructed to connect the Promenade with the Main Street entrance. The grassed area will be relandscaped to make the area more inviting to the public.
The Empire Stores/Tobacco Warehouse complex was the subject of an historic structures report in 1990, prepared by Beyer, Blinder Belle et al. Archaeological test pits were also undertaken and retrieved artifacts were catalogued and sent to OPRHP's Peebles Island facility for storage."
63. The application also included a "Project Element/Cost Breakdown," which
included costs for creating walkways between the Tobacco Warehouse and the Empire Stores,
irrigation around those structures, re-sloping of the adjacent land, electrical lines to supply
power, and landscaping.5
5 While the landscaping and utilities work was later excluded in order to shift these funds to cover a shortfall in East River State Park, federal funding was used for walkways to the Tobacco Warehouse, irrigation around the Tobacco Warehouse, and cove restoration protecting the Tobacco Warehouse from erosion.
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64. The application also included a 6(f) Map to delineate the areas that were to be
aided by the federal funding. The 6(f) Map for Fulton Ferry Park submitted with the grant
application included the Tobacco Warehouse and Empire Stores.
65. In addition, the Pre-approval On-site Inspection Report incorporated a map which
emphasizes, with hand-drawn arrows, that the Tobacco Warehouse and Empire Stores are part of
the federally protected park. That report included as well a certification from Park Engineer
John Bagley, which certified that State Parks had "been told (verbally or in writing) what a
6(f)(3) boundary is and the implications of conversions in use."
66. The application also contained a clear and unequivocal certification that State
Parks would not "dispose of, modify the use of, or change the terms of the real property title, or
other interest in the site and facilities without permission and instructions from the awarding
agency." State Parks further certified that it would "record the Federal interest in the title ofreal
property in accordance with the awarding agency directives."
67. All of these references to the Tobacco Warehouse and Empire Stores - including
the certification, reaffirmation, the 6(f) Map itself, and the handwritten notes pointing to the
Tobacco Warehouse - leave no doubt that the Tobacco Warehouse and Empire Stores were
intentionally and unmistakably included in the Protected Park area.
68. The Project Agreement General Provisions required State Parks to perform as it
had represented in the grant request. State Parks was thus bound, and continues to be bound, by
the representations it made in the grant request regarding the Tobacco Warehouse and Empire
Stores.
69. The Department of the Interior approved State Parks' application and authorized a
grant, by letter dated December 13,2001. As part ofthe approval, the Department of the Interior
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again provided L WCF's General Provisions, including its "continuing assurances." Section
II(B) of the Continuing Assurances provides as follows: "The State agrees that the property
described in the project agreement and the signed and dated project boundary map made part of
that agreement is being acquired or developed with Land and Water Conservation Fund
assistance, or is integral to such acquisition or development, and that, without the approval of the
Secretary, it shall not be converted to other than public outdoor recreation use but shall be
maintained in public outdoor recreation in perpetuity .... "
70. In the year and a half that followed, State Parks received and spent the federal
grant pursuant to the LWCFA to complete work on the IMP.
71. On or about July 16, 2003, Kevin Bums of State Parks sent a letter to Jean
Sokolowski of NPS, enclosing L WCF A Close-out Documentation. The letter included a final
on-site inspection report, in which State Parks confirmed that "the 6(f)(3) boundary established
in the pre-approval stage [has] been reaffirmed with the project sponsor," and that "the sponsor
(State agencies or locals) [has] been told (verbally and in writing) what a 6(f)(3) boundary is and
the implication of conversion in use." State Parks thus certified that it had reviewed and
determined that the Tobacco Warehouse and Empire Stores were properly included on the 6(f)
Map.
72. In a letter sent to State Parks on or about September 26, 2003, NPS similarly re-
affirmed its understanding that the Tobacco Warehouse and Empire Stores were properly
included on the 6(f) Map. Letter from Jean Sokolowski to Kevin Bums, at 1 (Sept. 26, 2003).
73. Thus, even two years after the initial L WCF A application, State Parks continued
to certify that the Tobacco Warehouse and Empire Stores were properly included in the 6(f)
boundary. Consistent with that intent, State Parks made the Tobacco Warehouse and Empire
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Stores available to the public for outdoor recreation between 2004 and 2009, as described in
greater detail below.
D. Creation And Mission Of The BBPDC
74. In May 2002, before the L WCF A grant was closed, the State of New York and
City of New York signed a Memorandum of Understanding ("MOU") for the development of the
Brooklyn Bridge Park, which included plans to incorporate the Fulton Ferry Park within the
broader Brooklyn Bridge Park.
75. To that end, the State and City agreed to create the BBPDC as a subsidiary of the
Empire State Development Corporation, to take full control and responsibility for the park
development, including development of the Fulton Ferry Park. See Paragraph 26.
76. The MOU required the BBPDC to develop a General Project Plan. The MOU
provided that the General Project Plan constituted "State 'action'" within the meaning of
environmental-review statutes, such that environmental reviews were required as part of the
planning requirements.
77. According to that MOU, the City and State agreed that the park development
would be "guided by the provisions contained in the" IMP and that the process would include
"extensive public input." Such input required, inter alia, communication and coordination with
"local community groups" (including Plaintiffs), which had been responsible (as the MOU
conceded) for important aspects of the IMP through the "extensive public consultation" from
which it arose.
78. The MOU also required that the project be preserved as open parkland.
Specifically, the MOU provided that:
Upon completion of construction of the Project or phases thereof,
the state-owned areas designated as open space under the
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General Project Plan shall be transferred to the jurisdiction of
State Parks and shall be afforded the protections of state law
relating to the non-alienation of State park lands. The Tobacco
Warehouse and lands of the existing Empire Fulton Ferry State
Park shall remain under the jurisdiction of State Parks.
MOU, p. 4 ~ 6. Thus, the MOU guaranteed that the Tobacco Warehouse, Empire Stores, and all
other state-owned parkland donated to the larger Brooklyn Bridge Project would be shielded
against alienation.
79. The General Project Plan, adopted by the BBPDC on July 26, 2005, and amended
on December 18, 2006, specifically differentiated park space from development parcels. Under
the heading "Parkwide Elements," the plan specifically discussed the Fulton Ferry Park: "The
area between the Brooklyn and Manhattan Bridges is already largely developed as parkland,
containing both the Empire-Fulton Ferry State Park and the new Main Street Park at the foot of
Main Street .... The restored exterior shell of the former Tobacco Warehouse may be used to
house a walled garden, cafe, or space for arts groups."
80. Critically, the General Project Plan did not identify the Tobacco Warehouse as a
development parcel. The Empire Stores, on the other hand, was identified as a development
parcel. 6
81. In addition, the BBPDC was responsible for issuing a final Environmental Impact
Statement ("EIS") for Brooklyn Bridge Park in. December 2005. The EIS provides granular
detail about the various aspects of the development project, including renovation, demolition,
6 At the point when the BBPDC first embraced a plan to develop the Empire Stores, the proper course would have been for Defendant BBPDC and State Parks to have filed an application with NPS to use the statutory conversion process pursuant to Section 6(f)(3) of the LWCF A and its implementing regulations. They did not do so, and have never done so.
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and alternation of various areas and structures. Nowhere in the EIS is there any mention
whatsoever of a plan to relinquish the Tobacco Warehouse for development. Nowhere in the EIS
is there any mention of a plan to allow development of a private theater in the Tobacco
Warehouse. Indeed, the EIS specifically identified the Tobacco Warehouse as "open space" and
"designated parkland."
E. Public Enjoyment (2004-2009)
82. True to the General Project Plan and the EIS, in the period between 2002 and
2009, State Parks protected the public's ability to enjoy the Tobacco Warehouse for outdoor
recreational activities. It also made the Empire Stores a central hub of park support, placing
bathrooms, emergency services, and park coordination activities within that structure.
83. As for public programming with the Tobacco Warehouse, State Parks delegated
those responsibilities under the terms of a permit issued to the Brooklyn Bridge Park
Conservancy, which opened the Tobacco Warehouse to many publicly-funded groups and
members of the public for a wide array of outdoor recreational activities. Between 2004 and
2009, the Brooklyn Bridge Park Conservancy sponsored over 200 free programs in or
immediately around the Tobacco Warehouse, which were attended by more than 200,000 people.
84. During this period, when not used for the Brooklyn Bridge Park Conservancy's
public programming events, or a limited number of private events, the Tobacco Warehouse
remained open to park goers during the Fulton Ferry Park's hours of operation. Strollers were
free to wander in and out of the Tobacco Warehouse, and did so frequently.
85. The overwhelming majority of the Brooklyn Bridge Park Conservancy's events
were open to the public without charge. Most of these events occurred in the open air. Some of
the events occurred within a tent, erected within the perimeter of the walls during inclement
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weather. For many events, members of the public were able to watch and enjoy either from
seating within the walled perimeter or standing in the adjacent parkland.
86. Among many other events, the Brooklyn Bridge Park Conservancy arranged the
following:
• Waterfront workouts and yoga;
• Miniature golf;
• Picnics and barbeques;
• Health and conditioning camp;
• Children's camps;
• Free festivals;
• Free live outdoor concerts;
• Free outdoor arts programs;
• Free outdoor literary mingle events; and
• Free outdoor film screenings.
87. Indeed, to make the Tobacco Warehouse suitable for outdoor, nighttime activities,
the Conservancy also obtained funds to upgrade electrical utilities for the Tobacco Warehouse,
including the installation of permanent outdoor lights to the structure's perimeter.
88. NPS itself recognizes these activities as "outdoor recreational activities" for
L WCF A purposes. Each of these uses is either specifically referenced in, or entirely consistent
with, the nonexclusive list of eligible recreation activities provided in NPS's Manual, including:
• Spectator facilities, including amphitheaters and bandstands;
• Recreational sports and conditioning;
• Facilities related to family or group picnic sites;
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• Snack bars; and
• Community gardens.
See Land and Water Conservation Fund State Assistance Program, Federal Financial Assistance
Manual, Vol. 69, at 3-10 to 3-12 (Oct. 1, 2008). State Parks itself organized recreational
activities within the Tobacco Warehouse in 2008 and 2009, including family game days in its
"Go Out & Play in New York State" efforts.
F. Secret Plan To Privatize The Tobacco Warehouse
89. Despite the then-ongoing use of the Tobacco Warehouse for outdoor recreational
opportunities, State Parks and the executive director of the BBPDC (without knowledge of the
Director's Board) had numerous communications with a local developer (the "Developer") to
"explore how to start a planning process for the [Tobacco Warehouse]." Based on currently
available documents, those discussions began in 2008.
90. For example, in late June 2008, the Developer sought to arrange a meeting with
State Parks Commissioner Carol Ash through the BBPDC Executive Director. As one point, the
Developer complained that, "Carol cancelled our meeting and has been ducking my calls to
reschedule. "
91. In July 2008, the Developer again contacted the BBPDC Executive Director,
saying "I have a lot of other ideas [about Brooklyn Bridge Park]. Let's talk." Within a few days,
he wrote again, saying simply: "We need more quality public art in BB Park."
92. When the Developer learned that a carousel his family planned to donate to the
Fulton Ferry Park was not going to be placed in the Developer's preferred location, he said to the
BBPDC Executive Director: "[I] am warning you it is not going to go well at all if this is
correct."
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93. Indeed, the Developer was able to secure a meeting with State Parks
Commissioner Carol Ash on August 7, 2008, to discuss the carousel and other issues regarding
Fulton Ferry Park. In confirming the meeting, the Developer suggested a meeting at his personal
apartment, where he had "a perfect bird's eye view of the entire park from our apartment. We
can then walk the site. Everyone is invited to lunch at Rice to celebrate my birthday."
94. After the meeting among and between State Parks Commissioner Carol Ash, the
Developer, and the Executive Director of the BBPDC, the Developer wrote the Executive
Director, saying "I thought our meeting could not have been better."
95. On information and belief, in or around August 2008, then-Commissioner Carol
Ash attended a meeting to discuss permit renewals at the Fulton Ferry Park and, more
specifically, the fate of the Tobacco Warehouse. Witnesses recall a dispute over the Developer's
influence over the revitalization of the park. Then-Commissioner Ash demanded that the
objectors "get over" any problems they had with the Developer and "make peace" with the
Developer.
96. Later, the Executive Director of the BBPDC promised to provide the Developer
with a report of her separate meeting with State Parks Commissioner Carol Ash, and she thanked
the Developer for "the renderings and the great souvenir of your Dad's birthday. I love it." (The
Developer, a local company, is owned and operated by a family.)
97. When the Brooklyn Bridge Park Conservancy suggested an alternative location
for the carousel, the Developer sent an angry letter, claiming "Without us, there would never
have been a DUMBO."
98. Then, on October 2, 2008, the Developer sent an email to the BBPDC Executive
Director and Commissioner of State Parks, inquiring "when can we start on . . . the Empire
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Stores/Tobacco Warehouse?" Importantly, this communication was before State Parks'
application to NPS. At the time of this email, these sites were included in the 6(f) boundary
map as federally-protected parkland. The then-Commissioner promptly replied to confirm that
that she would like to "sit down ... [and] talk at that time about a time frame[.]"
99. Indeed, the Developer forwarded the Commissioner's email to the BBPDC's
Executive Director on October 7, 2008, noting that it "[s]ounds like she [Commissioner Carol
Ash] is coming along." That same day, the Executive Director sent a reply email "agree[ing]
[that she] is getting there."
1 00. The discussions culminated in a secret submission by State Parks to NPS to
remove the Tobacco Warehouse from the federally-protected portion of the 6(f) Map, allowing
State Parks to permit "adaptive reuse" development by private interests. This application was
not revealed to Plaintiffs, other members of the public, or even the Board Members of the
BBPDC.
101. Of course, these discussions secretly led to the pact to steer the Tobacco
Warehouse - a National Landmark - to a private theater. Thus, in July 2009, the Developer sent
an email stating that, with the BBPDC Executive Director "now in control [of BBPC] and the
carousel going into the park, we want to have a plan to complete the Empire Stores and Tobacco
Warehouse."
G. State Parks' 2008 Application And The NPS Decision
102. State Parks submitted its application on November 5, 2008, requesting that NPS
re-draw the 6(f) Map to exclude the Tobacco Warehouse and the Empire Stores, claiming that
their original inclusion in the Map had been an oversight. State Parks further claimed that "we
can state that these former warehouse buildings are not suitable for nor used by the public for
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outdoor recreational opportunities in the park." See Attachment B.
103. Notably, no support was provided for these false representations and no
description of the warehouse or the events taking place there was provided.
104. NPS knew or should have known that State Parks' first statement - that the
Tobacco Warehouse's inclusion on the 6(f) Map was an "oversight" - was false. Indeed, the
entire LWCFA grant proposal was made to assure the public's access to and enjoyment of the
Tobacco Warehouse and the surrounding park. As is very clear from the grant application, State
Parks intended to spend (and, in fact, spent) federal grant monies to provide walkways to the
Tobacco Warehouse, to provide irrigation, and to protect the Tobacco Warehouse from erosion.
Moreover, the grant application contains a clear and specific certification that State Parks
confirmed the 6(f) boundary to the inspector and was fully aware of the anti-conversion
requirement and the consequences of conversion. NPS ignored this clear evidence in granting
State Parks' request to de-park the Tobacco Warehouse.
105. Other documents clearly indicate that the Tobacco Warehouse was not mistakenly
included on the 6(f) map. For example, in 2005 the BBPDC commissioned a Final
Environmental Impact Statement for the Brooklyn Bridge Park Project, as required by New
York's State Environmental Quality Review ("SEQR") law. Figure 1-16 clearly demonstrates
that the Tobacco Warehouse is "Designated Parkland - Unavailable [for development]." Figure
2-2 shows "Existing Land Use" and clearly lists the Tobacco Warehouse as "Open Space."
Chapter 2 explains that "[l]and use on the existing open spaces between the Brooklyn and
Manhattan Bridges, which include Empire-Fulton Ferry State Park and Main Street Park on the
waterfront east of Main Street, would remain largely unchanged with the proposed project."
Chapter 7 explicitly states that "[t]he proposed project would also retain the Tobacco Inspection
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Warehouses in Empire-Fulton Ferry State Park and proposes the adaptive reuse of the Empire
Stores in the Fulton Ferry Historic District." Chapter 8 states that "views through the Tobacco
Warehouse would be substantially the same" under the park project.
106. Moreover, NPS should have known, and a minimal exercise of due diligence
would have confirmed, that State Parks' second assertion - that the Tobacco Warehouse was not
used or suitable for "outdoor recreational opportunities" - was also patently false. A simple
internet search would have revealed the extensive use of the Tobacco Warehouse for outdoor
recreational purposes. As previously discussed, outdoor recreational activities had taken place at
the Tobacco Warehouse since 2004, and they would continue to take place through 2009.
107. Thus, the evidence overwhelmingly establishes State Parks' intentional inclusion
of the Tobacco Warehouse on the 6(f) Map. Further, the federal grant had long ago been spent
and had clearly benefited the Tobacco Warehouse, a fact that ought to have led to a strong
presumption that the Tobacco Warehouse should remain protected until the proper reviews had
been conducted.
108. Following the Tobacco Warehouse's placement on the Map, which
documentation shows was confirmed and reconfirmed by State Parks and NPS, it must remain
protected "in perpetuity" unless a written application for conversion, meeting all the
requirements of the LWCFA, is submitted by the State of New York and reviewed and approved
by NPS.
109. There is no exception that allows for the prerequisites of the L WCF A to be
circumvented; State Parks' factual claim about the oversight was thus not only false, it was
irrelevant. See 36 C.F.R. § 59.3(b).
110. On information and belief, NPS's decision to allow the re-drawing of the 6(f)
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Map at this stage and in this manner was without precedent.
111. A fortiori, because there was significant evidence that the Tobacco Warehouse
was purposely included in the grant request, there was no basis upon which NPS should have
considered, let alone approved, State Parks' request to alter the 6(f) Map without the required
conversion procedure.
112. None of that apparently mattered to NPS, which, on information and belief, relied
entirely on State Parks' misrepresentation when it replied on or about December 12,2008. In a
letter that day, without any discussion of any NPS efforts to confirm State Parks' claims, NPS
granted State Parks' request to re-draw the 6(f) Map to exclude the Tobacco Warehouse. On
information and belief, NPS did not conduct any investigation on its own nor did it request a
submission from State Parks or from Plaintiffs or the other groups and individuals who worked
for so many years to save, and for so many years enjoyed, the Tobacco Warehouse as part of the
Fulton Ferry Park. See Attachment C (NPS Letter to State Parks, dated December 12,2008).
113. NPS's own statements demonstrated the careless manner in which it approved
State Parks' secret application. Even a cursory review of the facility would reveal that the
Tobacco Warehouse is a roofless structure, and not an "indoor recreational facility[y]" as NPS
described it in its decision on December 12, 2008. Based on the erroneous belief that the
Tobacco Warehouse was an indoor facility, and not suitable for outdoor recreational use by the
public, NPS concluded that "although L WCF regulations do not normally allow for the re
alignment of the 6(f) boundary after a project has been Administratively and Financially
Closed," it would ignore the rules and approve State Parks' request.
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H. Immediate Plan To Steer The Tobacco Warehouse To A Private Theater
114. Six days before the NPS decision was issued, a private theater ("Theater") -
which was the preferred tenant of the BBPDC Executive Director and the Developer to
eventually take over the Tobacco Warehouse - sent an email to the BBPDC Executive Director,
saying "I hear [an RFP has] come out. Did you hear that?"
115. That same day, December 6, the Theater again emailed the BBPDC Executive
Director, asking whether federal funds could be used to "fast track movement on the Empire
Stores and Tobacco Warehouse." It seems apparent that the BBPDC and the Theater knew much
that the public (and Plaintiffs) did not know - including that State Parks and the BBPDC
Executive Director were pushing to privatize the Tobacco Warehouse, so that the Theater could
then take exclusive control ofthe Tobacco Warehouse.
116. At a public meeting of the BBPDC on or about March 10, 2010, the Board
Members of BBPDC voted on a modification to the General Project Plan, which, among other
things, passed title of the Tobacco Warehouse from State Parks to the BBPDC, and then
authorized the execution of a 99-year lease between BBPDC and a newly formed corporation
charged with operating the park, the Brooklyn Bridge Park Corporation. The initial draft of the
modification designated the Tobacco Warehouse as a "development parcel[]." Based on the
objection of Board members, who believed the Tobacco Warehouse was open parkland, that
provision was deleted. The final modification, which the Board approved, did not explicitly
designate the Tobacco Warehouse as a development site.
117. The imprudent events surrounding the re-drawing of the 6(f) map led to an
unfortunate result. On July 8, 2010, State Parks deeded the Fulton Ferry Park land to the
BBPDC. However, accompanying the Letters Patent was a map that excluded the Tobacco
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Warehouse and the Empire Stores from the 6(f) protections, a consequence of erroneous
procedure. The Theater in the center of the above-specified communication got the ultimate
benefit: a monopoly of the Tobacco Warehouse.
I. NPS Recognized Mistake, But Conducted A Sham Review
118. Because the public was deliberately excluded from the efforts to remove the
Tobacco Warehouse from the 6(f) Map, Plaintiffs were not aware of the 2008 decision or the
improper communications with the Developer until May 2010, when they were revealed through
a Freedom of Information request by a community member.
119. Soon thereafter, in mid-July 2010, Plaintiff BHA sent a letter to NPS, explaining
the broad outdoor uses for which community members had enjoyed the Tobacco Warehouse
before State Parks shuttered it as part of a secret scheme to privatize it, and asking NPS to direct
State Parks to restore the 6(f) Map to include the Tobacco Warehouse. See Attachment D (BHA
Letter to NPS, dated July 15,2010).
120. NPS sat on this letter for six months. Tired of waiting for a review that might
never have been conducted, on January 13, 2011, Plaintiffs commenced this action by filing a
Complaint seeking to restore the 6(f) Map to include the Tobacco Warehouse. On January 18,
2011, Plaintiffs filed a motion for a temporary restraining order.
121. Only the threat oflitigation would finally compel the federal agency to commence
a meaningful review of its 2008 decision, leading NPS to quickly recognize that the previous
decision was flawed. But rather than correct its previous wrong, what followed was a one-sided
sham process that excluded Plaintiffs and once again violated the AP A and the L WCF A.
i. NPS Decided To Overturn Its 2008 Decision
122. The central premise of State Parks' 2008 request to re-draw the map was its
representation that "[a]t the present time, we can state that these former warehouse buildings are
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not suitable for nor used by the public for outdoor recreational opportunities in the park." NPS's
subsequent response (approving the 6(f) re-draw) indicated that this representation was the sole
basis of its 2008 decision to de-park the Tobacco Warehouse: "[S]ince ... these former
warehouses are not suitable for recreational use by the public .... [we] concur with your request
to revise the boundary." This contemporaneous correspondence reveals that NPS's decision to
revise the boundary was based solely on State Parks' misrepresentation that the Tobacco
Warehouse was unsuitable for outdoor public recreation.
123. Once NPS, "treat[ing BHA's] request as an informal appeal of the December 2008
decision," commenced its review, it could not escape the obvious: the Tobacco Warehouse had
been used, contrary to State Parks' assertion, for a broad array of "outdoor recreation
opportunities."
124. Thus, even before litigation was commenced, Plaintiffs' representatives spoke
directly to Wayne Strum, the Acting Director of Local and State Programs for NPS, and counsel
for the Department of the Interior, through a representative and an attorney. During those
discussions, various representations were made, including:
• NPS's own 2008 decision to de-map the Tobacco Warehouse was without
precedent,
• NPS staff had concluded that the decision should be overturned and drafted a
letter to that effect,
• Issuance of the letter decision (overturning the 2008 decision and restoring the
Tobacco Warehouse to federal protection) was imminent.
125. However, after NPS further delayed issuing its long-awaited reversal, Plaintiffs
suspected that political pressure was being placed on NPS and the Department of the Interior,
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and thus filed the instant law suit.
126. After the suit was instituted, NPS was represented by DOJ. However, DOJ also
acted as NPS's agent in the context of the still on-going administrative review.
127. On or about January 20,2011, NPS internally concluded that "the 2008 correction
of the boundary in 2008 [sic] to exclude the Tobacco Warehouse was not justified." See
Attachment E. Central to this action, NPS conceded that "outdoor recreation activities have
taken place at the [Tobacco Warehouse] since prior to project completion in 2003, and that the
inclusion of the Tobacco Warehouse site in the original Section 6(f) boundary was appropriate."
On this point, NPS went into some detail, demonstrating that State Parks' earlier submission had
been incomplete and therefore misleading:
We have reviewed the original project grant application, the November 25, 2008, request from your office for a boundary correction, former Commissioner Ash's August 25,2010, letter to NPS Director Jon Jarvis, information provided by Ms. McGroarty and the Office of Congresswoman Nydia Velazquez, further discussions with you and your staff, and most recently the information you submitted electronically on January 6, 2011. We have concluded that allowable outdoor recreation activities have taken place at the site since prior to project completion in 2003, and that the inclusion of the Tobacco Warehouse site in the original Section 6(f) boundary was appropriate ....
In its 2008 request, your office asserted that the existing warehouses were " ... not suitable for nor later used by the public for outdoor recreational opportunities in the park" at the time of the application for the L WCF grant. Based on that assertion, the NPS Northeast Regional office in Philadelphia agreed to a technical correction to exclude the Tobacco Warehouse and accepted a revised boundary map from the State dated October 10, 2008.
Commissioner Ash's [August 25, 2010] letter, however, confirms that ... since 2002, the Tobacco Warehouse has been open to the public and has accommodated a variety of activities including outdoor performance and cultural uses such as theater, puppet and dance performances, concerts, art and sculpture displays, weddings and corporate events. These types of recreation uses and programming are common in parks throughout the country, including parks that are protected under
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Section 6(f) ....
[P]erformance and cultural activities of the sorts described in the Commissioner's letter, such as theater, ballet, and dance performances, concerts, art and sculpture displays, as well as weddings and corporate events, are not precluded by the L WCF manual and are allowable in Section 6(f) areas - in fact, L WCF funding can and has been used for amphitheaters, bandstands, pavilions and other modest spectator seating areas to accommodate performance and cultural uses in a public outdoor recreation environment.
See Attachment E (emphasis added).
128. As this Court is aware, on January 21,2011, NPS requested a two-week extension
to file an opposition to Plaintiffs' Motion for a Temporary Restraining Order, and represented to
both Plaintiffs and this Court that "this lawsuit as a whole" may be "render[ed] moot." NPS's
request was a reflection of the then-current expectation that it was about to reverse its 2008
decision, rendering the entire lawsuit moot because such a decision would restore the Tobacco
Warehouse to the 6(f) Map. Plaintiffs agreed to withdraw their motion for a TRO after being
given assurances by counsel for NPS that the agency was on the verge of issuing a decision in
Plaintiffs' favor, and that the need for this lawsuit, therefore, would soon dissipate.
ii. NPS Bows To Political Pressure
129. When the City of New York discovered, on or about January 20, 2011, that NPS
was about to issue a decision that would restore the Tobacco Warehouse to the 6(f) map, it
sprung into action. At the highest levels, City officials lobbied both NPS and the DOL
130. NPS then determined, despite having released an unsigned letter of reversal to
Plaintiffs and the City, to allow the City (through State Parks) to submit additional information.
In doing so, DOJ (as NPS's agent in the administrative procedure) specifically promised that
Plaintiffs would have a role in the process "equal in all ways to the City's role."
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131. Thus, on or about January 31, 2011, NPS accepted a supplemental submission
(the "January 31 Supplemental Submission") from State Parks, which forwarded a submission to
State Parks from City Parks. NPS apparently required this process because City Parks had no
official role in the grant application and was not the actual owner of the structures (but merely a
tenant).
132. At the suggestion of DOJ, Plaintiffs submitted a brief, immediate response,
believing that NPS still intended to reverse its decision.
133. On February 10,2011, DOJ contacted Plaintiffs in alarm. Assistant U.S. Attorney
David Eskew indicated that, unbeknownst to him, NPS had been allowing City Parks to continue
to make submissions, and that at least one phone call had been placed by the City to NPS. He
promised to immediately collect all information he could and forward it to Plaintiffs' counsel.
He verified his earlier promise that Plaintiffs would be given a full and fair opportunity to
respond. Plaintiffs notified AUSA Eskew that they planned a detailed response and would likely
request an in-person meeting with NPS and DOL
134. AUSA Eskew then forwarded the additional submissions. In all, City Parks had
made approximately four additional written supplemental submissions (the "Additional
Supplemental Submissions").
135. Moreover, unbeknownst to Plaintiffs, NPS held a "follow-up conference call with
the city and State officials ... on Monday, February 7 to ensure that NPS had a complete record
of matter relating to th[ e] [L WCF] project grant."
136. Later that day, AUSA Eskew confirmed with NPS that Plaintiffs would have a
"full right" to respond in writing to the City submission. DOJ further explained that only after
Plaintiffs' next submission would NPS would "close the record" and render its decision. With
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those promises, Plaintiffs' counsel spent the ensuing weekend (February 12 and 13) preparing
the next submission.
137. On Monday, February 14, 2011, over the "forceful objections" of DOl,? NPS
deprived Plaintiffs of the right to respond to the City's submission and issued a hasty decision
(the "Final Decision") which affirmed - on new grounds - its 2008 decision. See Attachment F.
This came as an utter shock to Plaintiffs, who were currently in the process of drafting a written
supplemental response, as unequivocally promised by NPS just three days before.
138. The Final Decision states that NPS took into account submissions by BHA, State
Parks, and City Parks. While representations by the City and, State that the Tobacco
Warehouse's placement on the 6(f) Map was a mistake were included in the administrative
record as part of their various submissions, evidence to the contrary was included in Plaintiffs'
Complaint and Motion for a Temporary Restraining Order in this action. NPS knew that the
evidence presented in the Complaint and Motion for a TRO would become a part of the
administrative record as soon as Plaintiffs submitted their next submission, and NPS further
knew that Plaintiffs intended to make such a submission. That NPS decided to quickly close the
administrative record in the middle of the process, rush a decision based on what it knew was
an incomplete record, while knowing that Plaintiffs' next submission was going to include
novel and relevant information that was not yet part of that record, was arbitrary, capricious, and
an abuse of discretion.
139. Thus, NPS's procedure was inherently and deliberately unfair. Further, as
discussed below, the information on which NPS relied, provided by City Parks without
7 The Assistant U.S. Attorney handling the matter said that NPS was acting, in the administrative proceeding, over his "forceful objection."
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Plaintiffs' opportunity to correct the record, was false.
Ill. The Substance Of The Submissions On Which NPS Conclusively Relied Was False
140. As discussed above, the December 12, 2008, decision was based on State Parks'
representation that the Tobacco Warehouse was "not suitable for nor used by the public for
outdoor recreational opportunities in the park." However, in the January 31 Supplemental
Submission, State Parks simply abandoned their 2008 rationale for de-parking the Tobacco
Warehouse and relied on a new one, put forth by City Parks: the inclusion of the Tobacco
Warehouse was a mistake because there were numerous unsuccessful proposals to use the
Tobacco Warehouse for non-6(f) uses.
141. This reasoning is unsound and contrary to law. First, NPS is not permitted to alter
a 6(f) Map without following the requirements specified in the L WCF A and its regulations,
mistake or not. Second, it is clear that the inclusion of the Tobacco Warehouse in the 6(f) Map
was indeed not a mistake, and any unsuccessful proposals to use it for non-6(f) uses does not
make it so. Moreover, the facts put forth by City Parks to substantiate its theory were
demonstrably false and should not have been relied on by NPS in any event.
142. For example, City Parks claimed that the "Plan for the D.U.MB.O Waterfront
and its vision for retail use of the Tobacco Warehouse was the leading proposal for use of the
space at least through the summer 2000." This assertion is demonstrably false. On information
and belief, the Plan for the D. U.MB. 0. Waterfront was a plan put forth by a private developer in
or around 1998, seeking to privatize the inter-bridge area of D.U.M.B.O, including the Empire
Stores and the Tobacco Warehouse. However, this plan was flatly rejected by the City of New
York. Indeed, by 1999, New York City had agreed to include the area between the Brooklyn and
Manhattan Bridges, including the Tobacco Warehouse, in its plans for Brooklyn Bridge Park.
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Thus, by October 1999, any proposal for private development of this area was moot.
143. Indeed, it was the 2000 Illustrated Master Plan ("IMP"), which presented the
"vision and conceptual framework" for the park and envisioned the Tobacco Warehouse as a
walled garden, that was the leading proposal at the time the L WCF grant was applied for and
funded. This is evidenced by the facts that (a) the IMP was created after the Plan for the
D. UMB. 0. Waterfront had been rejected but before the LWCF grant had been applied for, and
(b) the IMP remains the one and only proposal for Fulton Ferry Park to be ever put into practice,
as demonstrated by the way in which the Tobacco Warehouse was subsequently used as well as
the fact that the EIS refers to the Tobacco Warehouse as "open space" and "designated
parkland. "
144. City Parks took a number of other alarming liberties with the truth in its January
31 Supplemental Submission. For example, it suggested that the General Project Plan ("GPP")
for Fulton Ferry Park "envision[ed] uses of the Tobacco Warehouse that would not be allowed
under 6(f) including space for a cafe and arts groups." In fact, City Parks selectively truncated
this passage and took it out of context. In full, that portion of the GPP reads: "The restored
exterior shell of the former Tobacco Warehouse may be used to house a walled garden, cafe, or
space for arts groups." As is evident in context, the GPP hardly suggests, let alone mandates,
that the Tobacco Warehouse be used for unapproved uses. A walled garden, one of the uses
enumerated by the GPP but omitted from City Parks' letter, is clearly outdoors. Similarly, an
outdoor cafe or space for arts groups could fall within LWCF-approved uses. City Parks'
selective quotation could only have been aimed at misleading NPS to repeat the mistake of 2008.
It seems to have worked.
145. Similarly, City Parks improperly described one of the proposed ideas for the
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Tobacco Warehouse, known as the Michael Van Valkenburgh submission, as intending to place
"an interior building within the historic structure that would house offices and support space for
non-profit organizations." But City Parks grossly mischaracterized the idea to NPS. The Van
Valkenburgh proposal was centered around an outdoor garden and an outdoor theater. The
portion of the proposal that pertained to the outdoor theater, in its own words, was as follows:
"The brick walls of the Tobacco Warehouse remain intact and the insertion of a terraced concrete
seating element creates a space within the existing building shell for an outdoor theater and
gathering area. The terraced steps [used as the seating area for the outdoor theater] also provide
a roof for a building that houses offices and support space for non-profit organizations below."g
Thus, not only did the Van Valkenburgh proposal not support City Parks' argument, it proved
the contrary - the Tobacco Warehouse was intended to be used for outdoor recreational activities
consistent with the L WCF A.
146. Yet NPS relied on these and other misrepresentations when it rushed to issue its
Final Decision, squeezing out Plaintiffs in the process. In 2008, NPS took just five weeks to
make a hasty decision that relied on faulty information from State Parks. It should have learned
its lesson and checked City Parks' facts before relying on them conclusively in 2011. Instead, it
reduced its review time to a mere two weeks from the date of the January 31 Supplemental
Submission, and just five days from the last of the Additional Supplemental Submissions. And
once again, NPS's decision was flawed.
147. On information and belief, NPS' s motivation to rush its decision was two-fold.
g ln other words, the Van Valkenburgh proposal was to install stadium seating inside the Tobacco Warehouse, in which each row of seats was placed slightly higher than the row in front of it, to create an outdoor theater. Because this type of arrangement would create space under the seating area, the proposal envisioned a secondary use of indoor space that could be utilized and not wasted.
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First, NPS had already predetermined its result based on improper political pressure, and knew
that its purported rationale would not be plausible if Plaintiffs were allowed to correct the City's
mischaracterizations. Second, Secretary of the Interior Salazar and Mayor Bloomberg were
holding a joint presentation in New York City on February 17, 2010. Ironically, DOl's own
press release explained that the presentation was held to announce that "National Park Service
will ramp up its collaborative efforts with the City of New York and local partners to
expand outdoor opportunities, strengthen outreach programs to school children, improve
connections among the national parks in New York harbor, and restore New York's
remarkable natural, cultural, and historic resources." (Emphasis added). For obvious
reasons, there was undoubtedly intense political pressure on NPS staff to avoid admitting that
NPS had unlawfully abetted the City's scheme to convert a unique historic public outdoor
recreational structure to a private party.
iv. NPS's Final Decision Violates The LWCFA And The APA
148. For the reasons set forth below, NPS cannot ignore its own regulations In
allowing a grant beneficiary (or, as here, its successor-in-interest) to re-draw a 6(f) boundary.
Redrawing such a boundary requires NPS to follow the conversion process, which specifically
requires the grant beneficiary to establish why re-drawing the boundary is necessary, why no
alternatives to conversion exist, and requiring the substitution of parkland. On information and
belief, NPS has required this process in hundreds of other actions and, taken at his word, NPS's
own Director has never before authorized a "correction" of a 6(f) map without using the
conversion process. Thus, NPS's 2008 decision with respect to the Empire Stores and the
Tobacco Warehouse violates the APA, as does NPS's Final Decision regarding the Tobacco
Warehouse.
149. Moreover, NPS's Final Decision IS an internally-inconsistent document that
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whitewashes history and oversteps lawful bounds.
150. First and foremost, NPS's decision is premised on the proposition that State Parks
made a "mistake" by including the Tobacco Warehouse on the 6(f) map. It cites no direct
evidence of any mistake. NPS sought no statements or affidavits from the officials responsible
for the application. Rather, NPS's decision is based on the City's argument that circumstantial
evidence supports a conclusion that State Parks may have considered alternate uses, including
enclosed uses, for the Tobacco Warehouse.
151. However, 6(f) maps commonly include buildings that are enclosed and roofed.
NPS's own regulations do not require that only buildings themselves capable of being used as
outdoor facilities reside on 6(f) maps.
152. NPS's decision, however, ignores that the Tobacco Warehouse has no roof, has
no doors, and is - quite obviously - an outdoor facility. The decision ignores that, in 2003, the
year that the federal grant closed, State Parks requested that the Brooklyn Bridge Park
Conservancy agree to arrange for outdoor, public programming in the Tobacco Warehouse. The
decision ignores the obvious fact that the facility was used by the public for "outdoor
recreational opportunities" for almost seven years. The decision ignores that the GPP
specifically identified it as parkland and declined to identify it as a "development parcel[],"
unlike the Empire Stores. And the decision ignores the BBPDC final EIS, which labels the
Tobacco Warehouse as "open space" and "designated parkland."
153. Moreover, NPS's own decision lacks any evidentiary support for some
remarkable conclusions. For example, NPS determined that "despite [State Parks] twice
confirming, both in application and close-out documentation checklists that it understood the
implications of the proposed 6(f) boundary ... it had not actually done so." One can search any
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of the State's or City's various submissions to NPS in vain for any evidence whatsoever on this
point. The very purpose of the certification, or of signing any legal document, is to create a
binding promise. It is the height of arbitrary action for the agency empowered to protect public
parkland and national landmarks to allow those public assets to be alienated because of the
unsupported assertion that the federal grantee did not understand the implication of a 6(f) map,
which it repeatedly certified.
154. NPS affirms its 2008 decision by relying on the following construct: because
various planning agencies considered creating an enclosed structure within the Tobacco
Warehouse, the inclusion of the Tobacco Warehouse within the 6(f) map must have been a
mistake. City Parks may well be correct that many different uses of the Tobacco Warehouse
were explored, discussed, and considered, including some involving full or partial enclosures, at
various times and by various organizations involved in the development of Brooklyn Bridge
Park. As NPS knows well, however, and as its decision concedes, those proposals involving
permanent enclosure of the Tobacco Warehouse were consistently rejected. Rejected proposals
are of no moment.
155. Importantly, as the Final Decision notes, but tries to wash away, the IMP was the
contemporaneous vision for the Park at the time the L WCF grant was requested and funded. The
IMP very clearly anticipates 6(f)-compliant uses for the Tobacco Warehouse, stating that "the
existing perimeter walls of the former Tobacco Warehouse are stabilized and preserved to form a
walled garden. A complementary use, such as a small-scale cafe, would also be desirable." The
IMP also referred to the Tobacco Warehouse's outdoor garden as "event space."
156. Indeed, the OPP for Brooklyn Bridge Park, which was developed based on the
IMP, did not designate the Tobacco Warehouse as a development site, even under a "mixed use"
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designation (as it did for the Empire Stores).
157. And although the IMP's vision for the Tobacco Warehouse is the one and only
proposal to ever be put into practice, NPS's Final Decision summarily dismisses it as being less
significant than a handful of proposals-which, in any event, were misleadingly characterized by
City Parks-that were rejected one after another.
158. Meanwhile, the Final Decision concedes that L WCF funds were used to restore
the shoreline and the walkways in the vicinity of the Tobacco Warehouse; but it maintains that
the Tobacco Warehouse did not benefit from the grant because the once-crumbling structure was
stabilized "with other than L WCF funds." Such a determination is illogical, because a structure
or park can benefit from funding from multiple sources, as was the case with the Tobacco
Warehouse and Fulton Ferry Park. Moreover, this justification was explicitly rejected by NPS in
earlier discussions during the administrative process: even if L WCF funds were not used
directly to stabilize the Tobacco Warehouse, the use of such monies for the Fulton Ferry park
and the inclusion of the Tobacco Warehouse on the 6(f) map created binding federal protection.
As NPS's own LWCF Grants Manual confirms, the conversion requirement is "applicable to the
area depicted or otherwise described on the 6(f)(3) boundary map and/or as described in other
project documentation approved by the Department of the Interior. This mutually agreed to
area normally exceeds that actually receiving L WCF assistance so as to assure the
protection of a viable recreation entity." (emphasis added).
159. Even the procedural posture of the Final Decision is both internally inconsistent
and inconsistent with AP A guidelines. In the decision, NPS declares that it undertook the review
in response to "an informal appeal" by Plaintiffs, but later states that the Final Decision
"supersedes the decision contained in the NPS December 12, 2008, letter." That earlier letter
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was explicit in stating that the de-mapping of the Tobacco Warehouse was based solely on State
Parks' misrepresentation that the Tobacco Warehouse was unsuitable for outdoor public
recreation.9 Accordingly, on appeal, the decision should have been reversed once it was
demonstrated that the Tobacco Warehouse was, in fact, suitable for or used by the public for
outdoor recreational opportunities-a reality that was no longer in dispute.
160. Hence, Plaintiffs' February 2, 2011, letter, addressed this central issue, refuting
what was the underlying premise of NPS's decision, the incorrect notion that the Tobacco
Warehouse was "not suitable for nor used by the public for outdoor recreational opportunities in
the park." But NPS's Final Decision was not based at all on whether its December 12, 2008,
decision was properly made; indeed, by then all had agreed that the December 12, 2008, decision
was fatally flawed. Instead, NPS invited one side, City Parks and State Parks, to submit an
entirely new factual record; decided the appeal on the basis of these new "facts" (erroneous as
they were); rushed to a decision without allowing Plaintiffs the opportunity to respond to the new
factual record; and in the process failed to verify any of the facts submitted by City Parks or
State Parks, accepted them unconditionally, and, as a result, rendered yet another flawed
decision.
161. Finally, the issuance of this Final Decision to remove the Tobacco Warehouse
from the 6(f) Map is pitted in an undeniable falsehood: that if City Parks can demonstrate that
9 As previously discussed, the premise of State Parks' 2008 request to re-draw the map was its representation that "[a]t the present time, we can state that these former warehouse buildings are not suitable for nor used by the public for outdoor recreational opportunities in the park." NPS's subsequent response indicates that this representation was the basis of its decision to de-park the Tobacco Warehouse: "[S]ince ... these former warehouses are not suitable for recreational use by the pUblic .... [we] concur with your request to revise the boundary." This contemporaneous correspondence reveals that NPS's decision to revise the boundary was based solely on State Parks' misrepresentation that the Tobacco Warehouse was unsuitable for outdoor public recreation.
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the Tobacco Warehouse's placement on the 6(f) Map was a mistake, NPS ought to affirm its
removal from the 6(f) Map.
162. This argument has no merit. As discussed below, the L WCF A has a process for
converting parkland to non 6(f)-compliant uses, and that process must be followed here. The
L WCF A provides no exception to this process, even in the event of a "mistake." For this reason
alone, NPS's decision is unlawful.
163. Moreover, NPS official Wayne Strum's only justification for this new sweeping
authority to give parkland to developers is contained in the following sentence: "My office
understands that over time, regional staff have approved limited, technical corrections to the 6(f)
boundary where they determined there was, in fact a significant mistake in how the boundary
was mapped." Of course, Mr. Strum earlier represented that he was aware of no such authority
and that every other 6(f) re-draw within his knowledge was accomplished through the conversion
process. Moreover, the power this decision embraces eviscerates the carefully calibrated
regulatory framework for federal-grant protection of parkland. Now, no matter how many times
a federal-grant recipient certifies a 6(f) boundary, and no matter how long the property is used as
open parkland, a federal-grant recipient can side-step the conversion process (which requires an
evaluation of reasonable alternatives to development and substitution of parkland for the public)
by claiming "we made a mistake." And here NPS completely ignores the fact that the first claim
of any such "mistake" was 5 years after the grant closed and after a private developer started
lobbying public officials to get control of the site.
164. On information and belief, NPS has never unilaterally changed a 6(f) Map in the
manner in which it is attempting to do so here, particularly where there is any controversy or
dispute over the parkland to be removed from federal protection. The L WCF A and its
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implementing regulations do not grant NPS the authority to change a final 6(f) map without
undergoing the required conversion process. To the contrary, the NPS' sown L W CF Grants
Manual is explicit (emphasis added):
The Section 6(f) map shall clearly delineate the area to be included under the conversion provisions of Section 6(f)(3) of the L WCF Act. An acceptable Section 6(f) map is required for all development and combination projects prior to NPS approval, and for acquisition projects, prior to reimbursement. NPS will contact the State about any needed changes to the map.
Prior to the date of final reimbursement for development and combination projects, the State and NPS may mutually agree to alter the Section 6(f) boundary to provide for the most satisfactory unit intended to be administered under the provisions of Section 6(f)(3). For acquisition projects, Section 6(f) protection is afforded at the time L WCF reimbursement is provided.
No changes may be made to the 6(0 boundary after final reimbursement unless the project is amended as a result of an NPS approved conversion.
165. Even if NPS possessed some authority to make a purely technical correction to a
final 6(f) map, this authority would certainly not allow removal of parkland such as the Tobacco
Warehouse, which for years after the 6(f) map was finalized has been in use for public outdoor
recreation.
LEGAL BACKGROUND
A. The Land And Water Conservation Fund Act ("LWCFA")
166. The LWCFA was established by Congress in 1965 as a grant program to help
create and maintain outdoor recreation sites throughout the nation. A 1961 commission report
advised Congress that a national recreation policy was important for the "physical, cultural and
spiritual benefits" it would provide to the American people. The grant program is intended to
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assist States in the acquisition of properties for recreation in a nation that, even at the time of
enactment of the statute, was on a rapid road to development. See National Park Service, Land
and Water Conservation Fund State Assistance Program, Federal Financial Assistance Manual,
at Preface 2 (2008), available at http://www.nps.gov/lwcf/manualllwcf.pdf (L WCF A was
enacted "to assist in preserving, developing, and assuring to all citizens of the United States of
present and future generations such quality and quantity of outdoor recreation resources as may
be available and are necessary and desirable for individual active participation.").
167. The new program was designed to have a lasting effect on the supply of recreation
sites and facilities by requiring that sites assisted be added permanently to the "national
recreation estate." As a result, Section 6(£)(3) of the L WCF A states unequivocally that grant
assisted properties are to remain forever available for "public outdoor recreation use," or be
replaced by lands of equal market value and recreation usefulness. 16 U.S.C. § 4601-8(£)(3); see
also National Park Service, State L WCF A, http://www.nps.gov/ncrc/programs/1wcflhistory.html
(last visited Feb. 28,2011).
168. The protection provided by Section 6(£)(3) of the LWCFA has been the program's
greatest legacy over its 40-year history. It has been essential to fulfilling the mission of
contributing permanent resources to the nation's "recreation estate." National Park Service,
State LWCFA, http://www.nps.gov/ncrc/programs/lwcf/history.html (last visited Feb. 28, 2011).
Recreation facilities continue to be of tremendous value to the communities they serve, both for
the physical, cultural and spiritual benefits originally cited by the federal commission, and for
their benefits in combating obesity, heart disease, diabetes, and other ills of twenty-first century
life.
169. States receiving L WCF A grant assistance must first create a Section 6(£) Map that
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clearly delineates the area that is protected by the statute's prohibition on conversion to non
outdoor recreational use. See National Park Service, Land and Water Conservation Fund State
Assistance Program, Federal Financial Assistance Manual, at 6-3 (2008), available at
http://www .nps. gov /1 wcf/manual/l wcf. pdf.
170. If the State later wishes to convert a property that had received L WCF monies,
and was thus part of the "recreation estate," to a non-outdoor recreational facility - e.g., by
removing the Protected Park designation afforded a property under Section 6(£)(3) - it must
submit a written application for conversion. Under the L WCF A, "[t]he Secretary shall approve
[removing parkland from the protected map] only if he finds it to be in accord with the then
existing comprehensive statewide outdoor recreation plan and only upon such conditions as he
deems necessary to assure the substitution of other recreation properties of at least equal fair
market value and of reasonably equivalent usefulness and location." 16 U.S.c. § 4601-8(£)(3)
(emphasis added).
171. To meet this burden, the State must demonstrate each of the following: (1) all
practical alternatives to the conversion have been evaluated; (2) the fair market value of the
property to be converted has been established and the property proposed for substitution is of at
least equal fair market value as established by an approved appraisal; (3) the property proposed
for replacement is of reasonably equivalent usefulness and location as that being converted; and
(4) the property proposed for substitution meets the eligibility requirement. 36 C.F.R. § 59.3(b).
B. National Environmental Policy Act ("NEP A")
172. NEP A requires federal agencies to include an environmental impact statement
("EIS") in "every recommendation or report on proposals for legislation and other major Federal
actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C).
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173. Agencies are required to integrate the NEP A process with other planning at the
earliest possible time to insure that planning and decisions reflect environmental values, to avoid
delays later in the process, and to head off potential conflicts. The NEP A process begins
whenever there is a "proposal" for major federal action. The "proposal" stage is defined as when
the agency "has a goal and is actively preparing to make a decision on one or more alternative
means of accomplishing that goal and the effects can be meaningfully evaluated." 40 C.F.R.
§ 1508.23.
174. For purposes of NEPA, a non-federal project is considered a "major federal
action" when (1) "the non-federal project restricts or limits the statutorily prescribed federal
decision-makers' choice of reasonable alternatives; or (2) when the federal decision-makers have
authority to exercise sufficient control or responsibility over the non-federal project so as to
influence the outcome of the project." Weiss v. Kempthorne, 683 F. Supp. 2d 549, 560 (W.D.
Mich. 2010) (citation omitted). When it is unclear whether the effects of an action will be
"significant," agencies are directed to prepare a shorter environmental assessment ("EA") to help
make that determination. 40 C.F .R. § 150 1.4(b).
C. Administrative Procedure Act ("APA")
175. The APA was established by Congress in 1946 to standardize administrative
practice and procedure among diverse agencies and to ensure that the duties of prosecutor and
judge would not be embodied in only one person or agency. See Sung v. McGrath, 339 U.S. 33,
36-42 (1950). To do so, the APA provides a general grant of judicial review of agency action.
See Bowen v. Massachusetts, 487 U.S. 879, 903-04 (1988) (noting that the legislative material
accompanying the AP A evinces congressional intent to cover a "broad spectrum" of
administrative actions) (citation omitted). Specifically, the AP A entitles a person who is
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adversely affected or aggrieved by agency action to judicial review of that agency action. 5
U.S.C. § 702.
176. Agency action reviewable under the APA includes those reviewable by a
particular statute, as well as those that are "final" and have "no other adequate remedy in a
court." 5 U.S.c. § 704. In determining whether an agency action is final, the "core question is
whether the agency has completed its decisionmaking process, and whether the result of that
process is one that will directly affect the parties." Franklin v. Massachusetts, 505 U.S. 788, 797
(1992).
177. Where Congress has not already provided special and adequate reVIew
procedures, agency action would otherwise have no adequate remedy in a court; thus, for these
actions, the APA provides a general grant of review. See 5 U.S.C. § 704; Bowen, 487 U.S. at
903. Indeed, review of alleged agency violations of the L WCF A and NEP A are properly sought
pursuant to the APA. See Weiss v. Kempthorne, No. 1:08-CV-I031, 2009 WL 2095997, at *1
(W.D. Mich. July 13,2009).
178. The AP A authorizes various forms of review and relief. Permissible forms of
review include those authorized by particular statutes, as well as declaratory judgment actions
and suits for writ of prohibitory or mandatory injunction. See 5 U.S.C. § 703. Courts may stay
action pending review, id. § 705, and may overturn agency action that is "arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law," id. § 706(2)(A), "in excess of
statutory jurisdiction, authority, or limitations, or short of statutory right," id. § 706(2)(C), or
"without observance of procedure required by law." Id. § 706(2)(D).
179. Under the AP A, "[g]overnment agencies must take great care to follow their own
rules and regulations." Ward v. Brown, 22 F.3d 516, 522 (2d Cir. 1994); see also Singh v. Us.
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Dep't. of Justice, 461 F.3d 290, 297 (2d Cir. 2006); Blassingame v. Sec 'y of the Navy, 866 F.2d
556, 560 (2d Cir. 1989); NRDC v. Us. EPA, 676 F. Supp. 2d 307, 313 (S.D.N.Y. 2009);
Beechwood Restorative Care Ctr. v. Thompson, 494 F. Supp. 2d 181,202 (W.D.N.Y. 2007).
D. The National Historic Preservation Act Of 1966
180. Congress enacted the National Historic Preservation Act ("NHPA"), 16 U.S.C. §
470a to 470w-6, in 1966 to preserve America's historic and cultural heritage. Congress
specifically declared that "the historical and cultural foundations of the Nation should be
preserved as a living part of our community life and development in order to give a sense of
orientation to the American people," and that "the preservation of [ our] irreplaceable heritage is
in the public interest so that its vital legacy of cultural, educational, esthetic, inspirational,
economic, and energy benefits will be maintained and enriched for future generations of
Americans." 16 U.S.C. § 470(b)(2), (4).
181. Under Section 106 of the NHPA, 16 U.S.C. § 470f ("Section 106"), federal
agencies having direct or indirect jurisdiction over a proposed federal or federally-assisted
undertaking must, "prior to" approving the undertaking, "take into account" the effect of the
undertaking on any district, site, building, structure, or object that is included or eligible for
inclusion in the National Register. Section 106 also requires that agency afford the Advisory
Council on Historic Preservation ("Advisory Council") "a reasonable opportunity to comment"
on the project. The Advisory Council is charged by the NHPA with promUlgating regulations
governing the implementation of Section 106.
182. Section 106 reviews contain four parts: (a) initiation of the reView; (b)
identification of historic properties; (c) assessment of adverse effects; and (d)
resolution/mitigation of adverse effects.
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183. The Section 106 regulations stress the importance of considering the effects of a
federal project at the earliest possible time during project planning, "so that a broad range of
alternatives may be considered during the planning process for the undertaking." 36 C.F.R. §
800.1 (c). The regulations reiterate the requirement that Section 106 reviews must be completed
"prior to" the approval of any expenditure of federal funds on the project, and prohibit actions
that may "restrict the subsequent consideration of alternatives to avoid, minimize or mitigate" the
project's adverse effects on historic and cultural sites. !d.
184. The regulations insist that "[t]he views of the public are essential to informed
Federal decisionmaking in the section 106 process. The agency official shall seek and consider
the views of the public in a manner that reflects the nature and complexity of the undertaking and
its effects on historic properties, [and] the likely interest of the public in the effects on historic
properties .... " Id. § 800.2(d)(1).
185. Further, the regulations require notice to the public prior to the federal decision.
"The agency official must, except where appropriate to protect confidentiality concerns of
affected parties, provide the public with information about an undertaking and its effects on
historic properties and seek public comment and input." Id. § 800.2(d)(2).
186. The Advisory Council regulations require that the agency initiate the review by
identifying the appropriate State Historic Preservation Officer/Tribal Historic Preservation
Officer ("SHPO/THPO") to consult with during the ensuing review process. The agency should
plan the Section 1 06 review to coordinate with other reviews, including NEP A, and should
involve the SHPO/THPO, the public, and other consulting parties such as local governments or
individuals and organizations that request to be a part of the review (collectively, the "Consulting
Parties"). 36 C.F.R. § 800.3.
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187. The agency must then determine whether the proposed project may adversely
affect Register-listed or Register-eligible property. If the agency determines that no historic
properties will be affected, or that the effect of the proposed project on historic property will not
be adverse, then the agency is required to document that decision and inform the Advisory
Council, the SHPO/THPO, and other Consulting Parties, and to make the documentation
available for public inspection. The Advisory Council and SHPO/THPO are given 30 days in
which to note an objection to the agency's findings of no adverse effect. 36 C.P.R. § 800.4.
188. If the agency determines that there will be an adverse effect, or if the Consulting
Parties object to the agency's finding of no adverse effect, then the agency is required to conduct
a review, taking input from the Consulting Parties, to identify the nature and scope of potential
adverse effects. 36 C.P.R. § 800.5.
189. The regulations then require that the agency consult with the Consulting Parties to
resolve or mitigate the adverse effects. This coordination is expected to result in a Memorandum
of Agreement, which outlines the measures that the agency will take to avoid, minimize, or
mitigate adverse effects. 36 C.P.R. § 800.6.
190. If no Memorandum of Agreement can be reached, the regulations require the
agency to document its response to the Advisory Council's comments, and that this response be
provided to all Consulting Parties and to the public. 36 C.P.R. § 800.7.
191. The agency may not proceed with the undertaking without engaging In the
Section 106 process. 36 C.P.R. § 800.2.
E. The Public Trust Doctrine
192. The Public Trust Doctrine is the New York common law principle that certain
resources, such as parkland, are held in trust by the government for public use, and the
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government must maintain these resources for such use. See Ackerman v. Steisel, 480 N.Y.S.2d
556,558 (N.Y. App. Div. 1984) ("Dedicated park areas in New York are impressed with a public
trust, and their use for other than park purposes, either for a period of years or permanently,
requires the direct and specific approval of the State Legislature, plainly conferred."); see also
1981 N. Y. Op. Atty. Gen. (Inf.) 242 ("Park land is held in the public trust and may not be
diverted to other uses."). Based on this principle, the Court of Appeals - for well over a century
- has time and again upheld the concept that legislative approval is required before parkland can
be alienated for non-park purposes. See Friends of Van Cortlandt Park v. City of New York, 95
N.Y.2d 623, 631-32 (2001); Williams v. Gallatin, 229 N.Y. 248, 254 (1920); Brooklyn Park
Comm'rs v. Armstrong, 45 N.Y. 234,243 (1871).
193. The requirement of legislative approval prior to parkland alienation applies to
both formally dedicated parkland and impliedly dedicated parkland. See Kenny v. Bd. of Trs. of
Vill. of Garden City, 735 N.Y.S.2d 606,607 (N.Y. App. Div. 2001) (property acquired and used
for recreational purposes was instilled with public trust even though never officially dedicated);
Riverview Partners, LP v. City of Peekskill, 710 N.Y.S.2d 601, 602 (N.Y. App. Div. 2000) ("In
the absence of a formal dedication of land for public use, an implied dedication may exist when a
municipality's acts and declarations manifest a present, fixed, and unequivocal intent to dedicate.
Once established, the dedication is irrevocable."); Ackerman, 480 N.Y.S.2d at 558 ("The
purchase of the subject parcel for 'park purposes' and its inclusion in the record map of [the
park] 'manifested unequivocally an intention to dedicate the municipally-owned property to
public use as a public park. "') (citations omitted); Vi!!. of Croton-on-Hudson v. Cnty. Of
Westchester, 331 N.Y.S.2d 883, 884 (N.Y. App. Div. 1972) ("[W]hile there does not appear to
have been a formal dedication of the land to [park] use ... we think the long-continued use of the
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land for park purposes constitutes a dedication and acceptance by implication."); see also 1981
N.Y. Op. Atty. Gen. (Inf.) 242 ("Land can become dedicated for park purposes through its
improvement and use as a park.").
194. The requirement that the government hold parkland in the public trust applies to
the entire parkland property. See Aldrich v. City of New York, 145 N.Y.S.2d 732, 741 (N.Y. Sup.
Ct. 1955) ("[ A] trust was impressed upon the entire tract. It was all park land. The circumstances
that part of it was withdrawn for [non-park] use did not change the essential character of any part
of the property. Since the property was impressed with a trust for the public it could neither be
differently used nor alienated without legislative sanction.") (emphasis in original).
195. In Williams v. Gallatin, one of the seminal cases on parkland alienation, the Court
of Appeals stated that "[a] park is a pleasure ground set apart for recreation of the public, to
promote its health and enjoyment." 229 N.Y. at 253. The court, while noting the different
interpretations of the phrase "park purposes," concluded that "[t]he end of all such
embellishments and conveniences is substantially the same public good. They facilitate free
public means of pleasure, recreation and amusement and thus provide for the welfare of the
community .... [A public park] must be kept free from intrusion of every kind which would
interfere in any degree with its complete use for this end." Id. at 254 (emphasis added).
196. In 1913, the State Legislature codified the Public Trust Doctrine in Section 20(2)
of the General City Law, which declared that "the rights of a city in and to its water front, ferries,
bridges, wharf property, land under water, public landings, wharves, docks, streets, avenues,
parks, and all other public places, are hereby declared to be inalienable." N.Y. Gen. City Law §
20(2). Hence, under statute as well as under common law, alienation of municipal parkland is
unlawful unless expressly authorized by the State Legislature.
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197. In Brooklyn Bridge Park Legal Defense Fund, Inc. v. New York State Urban
Development Corp., 14 Misc. 3d 515 (N.Y. Sup. Ct. 2006), this Court found that the very park at
issue here, the Brooklyn Bridge Park, would be protected against State or City alienation by the
Public Trust Doctrine if the area in question had previously been designated as state parkland.
Clearly, this applies to the Tobacco Warehouse, which has unquestionably been a part of
Brooklyn Bridge Park and had been designated as state parkland. 1 0
198. Indeed, in December 2005 the Brooklyn Bridge Park Project Final Environmental
Impact Statement explicitly recognized that the Tobacco Warehouse is "Designated Parkland."
199. Therefore, pursuant to New York General City Law § 20(2) and the Public Trust
Doctrine, which requires the State Legislature to determine whether parkland should be used for
non-park purposes, the State or City may not alienate parkland nor utilize parkland for non-park
purposes without the approval of the State Legislature.
VIOLATIONS OF THE LAW
A. The Requirements Of The LWCFA Were Ignored
i. There Was No Evaluation Of All Practical Alternatives
200. NPS did not evaluate all practical alternatives to the conversion, as it was required
to do. This is because the State of New York failed to submit a list of practical alternatives,
pursuant to its responsibilities under 36 C.F.R. § 59.3(b)(1), and NPS failed to enforce the
requirement that such a list be submitted.
201. Nor, in this instance, did NPS conduct its own analysis as to whether there were
reasonable alternatives. Indeed, NPS's entire analysis in December 2008 was at least partially
10 The Court in Brooklyn Bridge Park found that because the area in question had not been designated a state park, it was not protected by the Public Trust Doctrine.
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based on the erroneous conclusion that the Tobacco Warehouse is an "indoor" facility.
ii. Equal Fair Market Value
202. In addition, no research was conducted into whether equal fair market value was
received. The Tobacco Warehouse has a high value due to its unique size, construction, and
location. NPS approved the conversion application without reviewing any appraisals at all.
iii. Reasonably Equivalent Usefulness And Location
203. To approve the conversion of LWCFA parkland to other uses, NPS must be
assured that the substitute recreation property will be "of reasonably equivalent usefulness and
location." 16 U.S.C. § 460l-8(t)(3). The regulations further explain that "[p]roperty to be
converted must be evaluated in order to determine what recreation needs are being fulfilled by
the facilities which exist and the types of outdoor recreation resources and opportunities
available. The property being proposed for substitution must then be evaluated in a similar
manner to determine if it will meet recreation needs which are at least like in magnitude and
impact to the user community as the converted site." 36 C.F.R. § 59.3(b)(3)(i).
204. The Tobacco Warehouse serves a useful and important purpose in the Brooklyn
Heights and New York community. It is an example of an architectural style that represents its
era and is a standing reminder of the 19th century warehouses which defined that era in
Brooklyn's history. Brooklyn Bridge Park Conservancy, http://www.brooklynbridgepark.org/
go/the-parklthe-park -today/tobacco-warehouse/to bacco-warehouse (last visited Dec. 23, 2010).
Its location and views make it highly valuable property. As previously discussed, it hosts many
outdoor events that are free to the public, and displays the breadth of Brooklyn's culture.
Whereas a theater company can be moved to a reasonably similar location, conversion of the
Tobacco Warehouse ensures that the only building of its kind in the area will no longer be open
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free of charge to the public for outdoor recreation.
205. Although NPS and State Parks had a legal duty to obtain replacement property of
equivalent usefulness and location, the agencies failed to do so in accordance with the law.
iv. Eligibility Of Replacement Property For L WCFA Assistance
206. Replacement properties become part of the L WCF A inventory and must
themselves be eligible for LWCFA assistance. See 36 C.F.R. § 59.3(b)(4). The Checklist states
that "[t]he property proposed for substitution meets the eligibility requirements for L & WCF
assisted acquisition. The replacement property must constitute or be part of a viable recreation
area." Id. But as FOIA requests have revealed, neither NPS nor any State agency had any
discussion whatsoever regarding a replacement property for the Tobacco Warehouse.
207. To date, there has been no proposal, nor even a mention, of possible replacement
property for the Tobacco Warehouse. In failing to submit such a list, NPS has failed to comply
with an express requirement of the LWCF A.
B. Failure To Comply With NEPA
208. On or about December 12, 2008, NPS agreed to re-draw the 6(f) Map to exclude
the Tobacco Warehouse from the federally protected parkland. The de-mapping of the Tobacco
Warehouse from Fulton Ferry Park constitutes a "major federal action" for purposes of NEP A.
42 U.S.c. § 4332(2)(C).
209. NPS's failure to prepare an environmental impact statement at the time State
Parks requested to re-draw the 6(f) Map violates federal law.
210. Accordingly, NPS's violation of NEPA is "arbitrary, capnclOUS, an abuse of
discretion, or otherwise not m accordance with law," "in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right," and "without observance of procedure
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required by law" within the meaning of the APA. 5 U.S.C. § 706(2)(A), (C)-(D).
C. Failure to Comply With The National Historic Preservation Act
211. Section 106 of NHP A and the regulations promulgated by the Advisory Council
on Historic Preservation require a federal agency with jurisdiction over a proposed undertaking
to determine, prior to approving the undertaking, the effect of the undertaking on any district,
site, building, structure, or object that is included or eligible for inclusion in the National
Register. As discussed above, the regulations include procedural steps that must be taken
pursuant to Section 106.
212. NPS's own LWCF Grants Manual requires adherence to Section 106. See Land
and Water Conservation Fund State Assistance Program, Federal Financial Assistance Manual,
Vol. 69, Section 4 (c), at 4-9 to 4-15 (Oct. 1, 2008). The Manual directs that, pursuant to
Section 106, "a State shall complete a L WCF proposal description/environmental screening form
("PD/ESF") for each proposal to be submitted to NPS for review and decision along with its
recommendation for a determination of effect and supporting documentation appropriate for the
type of proposal being submitted to NPS."
213. The requirement for states to complete a PD/ESF applies to all LWCF-related
requests to NPS for review and decision, and is not limited to grant applications. For example,
the Manual requires that a Section 106 PD/ESF be included in all Section 6(£)(3) conversions,
mandating that the "Section 106 process must be applied to the Section 6(£)(3) protected area to
be converted as well as the acquisition and development of the replacement parkland."
214. The L WCF Grants Manual requires the same adherence to Section 106 for
"[p ]roposals for temporary non-conforming uses, significant change in use, sheltering, and
developing public facilities," including proposals "to shelter an existing facility located within a
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Section 6(£)(3) protected area" or a "significant change in use." See id. at 4-12 and 8-14 to 8-15.
215. As previously discussed, the Tobacco Warehouse is listed on the National
Register of Historic Places. The L WCF Manual requires that any request for a decision by NPS
include a PD/ESF pursuant to Section 106.
216. Neither State Parks' November 2008 letter to NPS nor any subsequent
correspondence included any review pursuant to Section 106, nor did NPS conduct any such
revIew.
D. The Public Trust Doctrine
217. As designated parkland, the Tobacco Warehouse is protected by the Public Trust
Doctrine, and cannot lawfully be alienated without explicit legislative authorization by the New
York State Legislature.
218. On or about March 10, 2010, New York State and New York City agreed to
transfer govemance of Brooklyn Bridge Park, including the Tobacco Warehouse, to BBPC. In
conjunction with this agreement, BBPDC designated BBPC as the developer of Brooklyn Bridge
Park, including the Tobacco Warehouse.
219. On or about July 8, 2010, the BBPDC accepted letters patent that removed the
Tobacco Warehouse from the portion of the map of the park to be preserved as outdoor parkland,
thus alienating parkland. Such action requires the authorization of the state legislature pursuant
to the Public Trust Doctrine. BBPDC has taken no steps to obtain such authorization.
220. On or about August 24, 2010, the BBPC released an RFP for the Tobacco
Warehouse, "seeking proposals for the rehabilitation and adaptive reuse of the former Tobacco
Warehouse for cultural, educational or community use." Moreover, this RFP sought "proposers
who are interested in leasing, redeveloping, and being the primary occupant of the Site as a
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cultural facility ... to provide a wide array of cultural programming." Brooklyn Bridge Park
Press Release, dated August 25, 2010.
221. On or about November 17, 2010, the BBPC awarded the RFP to a single tenant, to
build an indoor theater.
222. Accordingly, pursuant to the Public Trust Doctrine, BBPDC and BBPC were
required to obtain "direct and specific approval of the State Legislature, plainly conferred."
Friends a/Van Cortland Park, 95 N.Y.2d at 632.
223. The award of the RFP without plainly conferred, specific, direct or explicit
legislative authorization is in direct violation of State law.
E. Conversion Of The Tobacco Warehouse Will Cause Irreparable Harm To Plaintiffs
224. As a result of NPS's hasty approval, affirmed in the Final Decision in
contravention of the L WCFA, to exclude the Tobacco Warehouse from the 6(f) Map, the
Tobacco Warehouse now sits in a precarious position to be permanently converted.
225. By allowing the construction of permanent, fully-enclosed theater space and other
enclosed facilities in the current location of the Tobacco Warehouse, NPS and State Parks have
approved plans for this 150-year-old site to be permanently and irreparably altered. Indeed, the
historic character of the Tobacco Warehouse will be destroyed, and the public will have lost its
outdoor recreational space without the substitute parkland to which it is entitled.
226. Furthermore, the harm to the public is already underway, as the Tobacco
Warehouse currently sits closed off to the public while state and city officials work to convert it.
FIRST CAUSE OF ACTION (AGAINST NPS)
Violation of Section 6(f) of the LWCFA (December 12,2008, Decision)
227. Plaintiffs incorporate the allegations asserted in the prior paragraphs as if stated
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fully herein.
228. The L WCF A and its implementing regulations provide funding to states to
acquire and develop lands for outdoor recreation, with the expectation that properties that have
been acquired with L WCF A funds should remain permanently available for outdoor recreation
use. Section 6(f)(3) of the L WCF A provides a limited exception, allowing the conversion of
L WCF A-assisted recreation properties, but only upon such conditions as the Secretary of the
Interior "deems necessary to assure the substitution of other recreation properties of at least equal
fair market value and of reasonably equivalent usefulness and location." 16 U.S.c. § 460l-
8(f)(3).
229. The Tobacco Warehouse was included in the territory covered by a federal grant
awarded pursuant to the L WCF A, and therefore must remain permanently available for outdoor
recreational use unless the procedures outlined in 36 C.F.R. § 59.3 are followed.
230. Pursuant to 36 C.F.R. § 59.3, any changes to other than public outdoor recreation
use of the Tobacco Warehouse require NPS approval and the substitution of replacement land in
accordance with the procedures provided by 36 C.F.R. § 59.3 and Section 6(f)(3) of the LWCFA.
To consider conversion, NPS must establish that specific prerequisites have been met: (1) all
practical alternatives to conversion have been evaluated; (2) the fair market value of the property
to be converted has been established and the property proposed for substitution is of at least
equal fair market value as established by an approved appraisal; (3) the property proposed for
replacement is of reasonably equivalent usefulness and location as the property being converted;
and (4) the property proposed for substitution meets the eligibility requirements for L WCFA
acquisition.
231. On December 12,2008, Defendant NPS violated the LWCFA by redrawing the
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6(£) Map to exclude the Tobacco Warehouse without following the requirements of 36 C.F.R. §
59.3.
232. Such an action constitutes a conversion of the Tobacco Warehouse in violation of
16 U.S.C. § 4601-8(£)(3), and is an agency action that is "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law," "in excess of statutory jurisdiction,
authority, or limitations, or ShOl1 of statutory right," and "without observance of procedure
required by law" within the meaning of the APA. 5 U.S.c. § 706(2)(A), (C)-(D).
233. Plaintiffs have no adequate remedy at law with respect to this conversion of
parkland.
SECOND CAUSE OF ACTION (AGAINST NPS)
Violation of Section 6(f) of the L WCF A (Final Decision)
234. Plaintiffs incorporate the allegations assel1ed in the prior paragraphs as if stated
fully herein.
235. The L WCF A and its implementing regulations provide funding to states to
acquire and develop lanfls for outdoor recreation, with the expectation that properties that have
been acquired with L WCF A funds should remain permanently available for outdoor recreation
use. Section 6(£)(3) of the L WCF A provides a limited exception, allowing the conversion of
L WCF A-assisted recreation properties, but only upon such conditions as the Secretary of the
Interior "deems necessary to assure the substitution of other recreation properties of at least equal
fair market value and of reasonably equivalent usefulness and location." 16 U.S.c. § 4601-
8(£)(3).
236. The Tobacco Warehouse was included in the territory covered by a federal grant
awarded pursuant to the L WCF A, and therefore must remain permanently available for outdoor
recreational use unless the procedures outlined in 36 C.F.R. § 59.3 are followed.
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237. Pursuant to 36 C.F.R. § 59.3, any changes to other than public outdoor recreation
use of the Tobacco Warehouse require NPS approval and the substitution ofreplacement land in
accordance with the procedures provided by 36 C.F.R. § 59.3 and Section 6(f)(3) of the LWCF A.
To consider conversion; NPS must establish that specific prerequisites have been met: (1) all
practical alternatives to conversion have been evaluated; (2Ythe fair market value of the property
to be converted has been established and the property proposed for substitution is of at least
equal fair market value as established by an approved appraisal; (3) the property proposed for
replacement is of reasonably equivalent usefulness and location as the property being converted;
and (4) the property proposed for substitution meets the eligibility requirements for L WCF A
acquisition.
238. On February 14, 2011, Defendant NPS violated the LWCFA by redrawing the
6(f) Map to exclude the Tobacco Warehouse without following the requirements of 36 C.F.R. §
59.3.
239. Such an action constitutes a conversion of the Tobacco Warehouse in violation of
16 U.S.C. § 4601-8(f)(3), and is an agency action that is "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law," "in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right," and "without observance of procedure
required by law" within the meaning of the APA. 5 U.S.C. § 706(2)(A), (C)-(D).
240. Plaintiffs have no adequate remedy at law with respect to this conversion of
parkland.
THIRD CAUSE OF ACTION (AGAINST NPS)
Violation of the APA (December 12, 2008, Decision)
241. Plaintiffs incorporate the allegations asserted in the prior paragraphs as if stated
fully herein.
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242. Defendant NPS's December 12, 2008, decision to remove the Tobacco
Warehouse from the 6(f) Map was conducted in secret, without due diligence, and based on
erroneous but easily verifiable facts. Such an action constitutes an agency action that is
"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," "in
excess of statutory jurisdiction, authority, or limitations, or short of statutory right," and "without
observance of procedure required by law" within the meaning of the AP A. 5 U.S.c. §
706(2)(A), (C)-(D).
FOURTH CAUSE OF ACTION (AGAINST NPS)
Violation of the AP A (Final Decision)
243. Plaintiffs incorporate the allegations asserted in the prior paragraphs as if stated
fully herein.
244. Defendant NPS's February 14,2011, decision to remove the Tobacco Warehouse
from the 6(f) Map was based on a one-sided process that excluded stakeholders, including
Plaintiffs, from participation. Plaintiffs were assured by Defendant NPS that they would have
the opportunity to be heard, only for Defendant NPS to issue its Final Decision hastily,
preempting additional input by Plaintiffs.
245. Defendant NPS (a) ignored its own rules and procedures; (b) intentionally
excluded input that would undercut its purported rationale; (c) decided an appeal based on an
entirely new factual record provided by advocates of only one perspective; (d) wholly failed to
investigate factual assertions by City Parks and State Parks despite being on notice that these
entities had misled NPS in the past and were doing so yet again; and (e) overruled its own
professional staff and intentionally designed a biased process to ensure that a predetermined and
politically-motivated result would be reached.
246. Such an action constitutes an agency action that is "arbitrary, capricious, an abuse
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of discretion, or otherwise not in accordance with law," "in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right," and "without observance of procedure
required by law" within the meaning of the APA. 5 U.S.C. § 706(2)(A), (C)-(D).
FIFTH CAUSE OF ACTION (AGAINST NPS)
Violation of NEPA (December 12, 2008, Decision)
247. Plaintiffs incorporate the allegations asserted in the prior paragraphs as if stated
fully herein.
248. NEPA requires federal agencies to include an "EIS" in "every recommendation or
report on proposals for legislation and other major Federal actions significantly affecting the
quality of the human environment." 42 U.S.C. § 4332(2)(C).
249. The NEPA process begins whenever there is a "proposal" for major federal
action. For purposes ofNEPA, a non-federal project is considered a "major federal action" when
(1) "the non-federal project restricts or limits the statutorily prescribed federal decision-makers'
choice of reasonable alternatives; or (2) when the federal decision-makers have authority to
exercise sufficient control or responsibility over the non-federal project so as to influence the
outcome of the project." Weiss, 683 F. Supp. 2d at 560 (citation omitted).
250. The December 12,2008, decision to re-draw the 6(f) Map to exclude the Tobacco
Warehouse, thus removing it from the federally-protected park space and leading to its eventual
privatization, constitutes a "major federal action" under NEP A. Thus, NPS was required to
prepare an EIS.
251. NPS agreed to remove the Tobacco Warehouse from the 6(f) Map in December
2008; yet an EIS was never prepared or submitted. The failure to follow proper procedure under
NEPA constitutes an action that is "arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law," "in excess of statutory jurisdiction, authority, or limitations, or short of
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statutory right," and "without observance of procedure required by law" within the meaning of
the AP A. 5 U.S.C. § 706(2)(A), (C)-(D).
SIXTH CAUSE OF ACTION (AGAINST NPS)
Violation of NEPA (Final Decision)
252. Plaintiffs incorporate the allegations asserted in the prior paragraphs as if stated
full y herein.
253. NEP A requires federal agencies to include an "EIS" in "every recommendation or
report on proposals for legislation and other major Federal actions significantly affecting the
quality of the human environment." 42 U.S.c. § 4332(2)(C).
254. The NEPA process begins whenever there is a "proposal" for major federal
action. For purposes ofNEPA, a non-federal project is considered a "major federal action" when
(1) "the non-federal project restricts or limits the statutorily prescribed federal decision-makers'
choice of reasonable alternatives; or (2) when the federal decision-makers have authority to
exercise sufficient control or responsibility over the non-federal project so as to influence the
outcome of the project." Weiss, 683 F. Supp. 2d at 560 (citation omitted).
255. The Final Decision to re-draw the 6(f) Map to exclude the Tobacco Warehouse,
thus removing it from the federally-protected park space and leading to its eventual privatization,
constitutes a "major federal action" under NEP A. Thus, NPS was required to prepare an EIS.
256. NPS agreed to remove the Tobacco Warehouse from the 6(f) Map in February
2011; yet an EIS was never prepared or submitted. The failure to follow proper procedure under
NEPA constitutes an action that is "arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law," "in excess of statutory jurisdiction, authority, or limitations, or short of
statutory right," and "without observance of procedure required by law" within the meaning of
the AP A. 5 U.S.C. § 706(2)(A), (C)-(D).
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SEVENTH CAUSE OF ACTION (AGAINST NPS)
Violation of The National Historic Preservation Act of 1966 (December 12, 2008 Decision)
257. Plaintiffs incorporate the allegations asserted in the prior paragraphs as if stated
fully herein.
258. Section 106 of the National Historic Preservation Act of 1966, 16 U.S.C. § 470f
("Section 106"), and the regulations promulgated by the Advisory Council, 36 CFR Part 800,
require a federal agency with jurisdiction over a proposed undertaking to determine, prior to
approving the undertaking, whether the proposed project will affect property included or eligible
for inclusion in the National Register. As discussed above, the regulations include procedural
steps that must be taken pursuant to Section 106.
259. The Tobacco Warehouse is listed on the National Register of Historic Places.
260. NPS has not conducted any reviews required by Section 106 and its regulations.
261. NPS did not afford the Advisory Counsel on Historic Preservation or any of the
Consulting Parties an opportunity to comment on NPS's December 12,2008, decision regarding
the Tobacco Warehouse as required by Section 106 and its regulations.
EIGHTH CAUSE OF ACTION (AGAINST NPS)
Violation of The National Historic Preservation Act of 1966 (Final Decision)
262. Plaintiffs incorporate the allegations asserted in the prior paragraphs as if stated
fully herein.
263. Section 106 of the National Historic Preservation Act of 1966,16 U.S.C. § 470f
("Section 106"), and the regulations promulgated by the Advisory Council, 36 CFR Part 800,
require a federal agency with jurisdiction over a proposed undertaking to determine, prior to
approving the undertaking, whether the proposed project will affect property included or eligible
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for inclusion in the National Register. As discussed above, the regulations include procedural
steps that must be taken pursuant to Section 106.
264. The Tobacco Warehouse is listed on the National Register of Historic Places.
265. NPS has not conducted any reviews required by Section 106 and its regulations.
266. NPS did not afford the Advisory Counsel on Historic Preservation or any of the
Consulting Parties an opportunity to comment on NPS's February 14, 2011, decision regarding
the Tobacco Warehouse as required by Section 106 and its regulations.
NINTH CAUSE OF ACTION (AGAINST BBPDC)
Violation of the Public Trust Doctrine
267. Plaintiffs incorporate the allegations asserted in the prior paragraphs as if stated
fully herein.
268. On or about March 10, 2010, New York State and New York City agreed to
transfer governance of Brooklyn Bridge Park, including the Tobacco Warehouse, to BBPC. In
conjunction with this agreement, BBPDC designated BBPC as the developer of Brooklyn Bridge
Park, including the Tobacco Warehouse.
269. On or about July 8, 2010, the BBPDC accepted letters patent that removed the
Tobacco Warehouse from the portion of the map of the park to be preserved as outdoor parkland,
thus alienating parkland. Such action requires the authorization of the state legislature pursuant
to the Public Trust Doctrine. BBPDC has taken no steps to obtain such authorization.
270. On or about July 29, 2010, BBPDC entered into a lease agreement designating
BBPC as tenant of the Tobacco Warehouse.
271. On or about August 24, 2010, BBPC issued an RFP for the Tobacco Warehouse
providing that BBPDC and BBPC will enter into a lease agreement with a private theater
company which will enclose the Tobacco Warehouse.
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272. The converSIOn of the Tobacco Warehouse to a private enclosed theater
constitutes an improper use of parkland, requiring the authorization of the state legislature
pursuant to the Public Trust Doctrine. BBPDC has taken no steps to obtain such authorization.
273. BBPDC and BBPC have closed the Tobacco Warehouse to the pUblic.
274. On information and belief, Plaintiffs have no adequate remedy at law with respect
to this violation of the Public Trust Doctrine.
JURY TRIAL DEMANDED
275. Plaintiffs demand trial by jury for all issues so triable.
NO PRIOR APPLICATIONS
276. No prior application for this or any similar relief has been made in this Court.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court issue an order:
(1) Declaring that Defendant NPS acted in a manner that was arbitrary, capricious, an
abuse of discretion and in violation of the L WCF;
(2) Declaring that Defendant NPS acted in a manner that was arbitrary, capricious, an
abuse of discretion and in violation ofNEP A;
(3) Declaring that Defendant NPS acted in a manner that was arbitrary, capricious, an
abuse of discretion and in violation of the NHP A, as amended;
(4) Granting preliminary and permanent injunctive relief requiring that Defendant
NPS redraw the 6(f) Map to again include the Tobacco Warehouse and the
Empire Stores;
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(5) Declaring that Defendant BBPDC alienated public parkland without direct and
specific approval by the New York State Legislature and in violation of the Public
Trust Doctrine;
(6) Enjoining Defendant BBPDC from proceeding with leasing the Tobacco
Warehouse to any person or private interest unless and until the National Park
Service approves a valid and complete application to convert the Tobacco
Warehouse and complies with its other legal obligations, including NEP A and
NHPA;
(7) Enjoining Defendant BBPDC from proceeding with leasing the Tobacco
Warehouse to any person or private interest unless and until the New York State
Legislature expressly authorizes the same;
(8) Enjoining Defendant BBPDC from allowing any person or private interest to
move operations into the Tobacco Warehouse;
(9) Enjoining Defendants from prohibiting public access to the Tobacco Warehouse;
(10) Granting a permanent injunction requiring that Defendant BBPDC direct BBPC to
rescind the RFP and reopen the Tobacco Warehouse to the public;
(11) Requiring that Defendant BBPDC redraw the Letters Patent deed in order to
extend parkland protections to the Tobacco Warehouse;
(12) Granting expedited discovery;
(4) Awarding Plaintiffs attorneys' fees and costs as may be permitted by law; and
(5) Granting such other and further relief as may be just and proper.
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Dated: New York, New York March 1,2011
73
By: ~~ __ ~~ ____________ __ alden, Esq. [JW-0447] Hallowell, Esq. [JLH-6074]
2 0 Park Avenue ew York, New York 10166-0193
Telephone: (212) 351-4000 Facsimile: (212) 351-4035 Attorneys for Plaintiffs