Save Our
Parks v. Kempthorne
SAVE OUR PARKS, GENEVA
HESTER, ALBERTHA HUNTER, LUZ I. ROLDOS, ESTER ROSA, LUCRECIA SANTIAGO,
FRANCES
TEJADA, and BRONX COUNCIL FOR ENVIRONMENTAL QUALITY, Plaintiffs, -
against -
DIRK KEMPTHORNE, Secretary, UNITED STATES DEPARTMENT OF THE INTERIOR;
FRAN
MAINELLA, Director, NATIONAL
PARK
SERVICE; MARY
A. BOMAR, Regional Director, Northeast Region, NATIONAL PARK SERVICE; BERNADETTE CASTRO, Commissioner, New York
State Office of Parks,
Recreation and Historic Preservation; ADRIAN BENEPE, Commissioner, New
York
City Department of Parks and Recreation; and NEW YORK YANKEES
PARTNERSHIP,
Defendants.
06 Civ. 6859 (NRB)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2006
November 15, 2006, Decided
November 15, 2006, Filed
SUBSEQUENT HISTORY: As Amended December 1,
2006.
COUNSEL: [*1] For Plaintiffs: Jeffrey
S. Baker, Esq., Young, Sommer, Ward, Ritzenberg, Baker & Moore,
LLC,
Albany, NY; Antonia Levine Bryson, Esq., New York, NY.
For Defendants: Serrin Turner, Esq., Office of the U.S. Attorney, New
York, NY;
Gordon J. Johnson, Esq., Assistant Attorney General, New York, NY;
William S.
Plache, Esq., Assistant Corporation Counsel, City of New York, New
York, NY;
David Paget, Esq., Katherine Anne Sinding, Esq., Sive Paget &
Riesel, New
York, NY; Philip M. Bowman, Esq., Boies, Schiller & Flexner LLP,
New York,
NY; Jonathan D. Schiller, Esq., Joshua Shaw, Esq., Boies, Schiller
&
Flexner, L.L.P., Washington, DC.
JUDGES: NAOMI REICE BUCHWALD, UNITED STATES
DISTRICT JUDGE.
OPINION BY: NAOMI REICE BUCHWALD
OPINION: MEMORANDUM
AND ORDER
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Plaintiff Save Our Parks
("SOP") is an unincorporated membership organization comprised of
individuals
interested in the "protection, restoration, preservation, expansion[,]
and
improvement of Macomb[']s Dam and John Mullaly Parks" in the area
surrounding the current Yankee Stadium, located in the South Bronx.
Plaintiff's Complaint ("Pl. Compl.") P 13. Plaintiff Bronx
Council [*2] for Environmental Quality ("Bronx Council")
is a non-profit organization "dedicated to working to preserve the
natural
and historic heritage of the
The construction of the new Yankee
Stadium requires that a portion of parkland currently protected by the
federal
Land and Water Conservation Fund ("L&WCF") be converted to
private use. The narrow question
before us in plaintiffs' present action is whether the National Park Service's ("NPS") approval of this
conversion was arbitrary and capricious and in contravention of Section
6(f)
(3) of the Land and Water Conservation Fund Act ("L&WCFA"). n1
See L&WCFA, 16 U.S.C. § 460l-8(f) (3). This action
is specifically directed to the approval by the NPS of the conversion
of a
portion of parkland [*3] to private use and the substitution
of
another piece of property as parkland. The involvement
of the NPS with the property began in 1979 when the
federal government originally invested $ 302,914.21 in a portion of
parkland in
the
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n1 We note that although we shall refer to the Land and Water
Conservation Fund
as the L&WCF and the Act as the L&WCFA, sources cited herein
use a
variety of acronyms to stand for both the Fund and the Act. When
quoting or
citing these sources, we have preserved the acronyms used in the
original.
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- [*4]
Plaintiffs initially sought a temporary restraining order, which was
denied by Judge
Crotty, sitting as a Part I judge. n2 A hearing was set for October 4,
2006 on
plaintiffs' motion for a preliminary injunction. At the hearing,
plaintiffs
consented to defendants' earlier motion, pursuant to Rule 65(a)(2) of
the
Federal Rules of Civil Procedure, to consolidate the merits with
plaintiffs'
motion for a preliminary injunction. n3 For the reasons set forth
below,
defendants' motion pursuant to Rule 65(a)(2) is granted; plaintiffs'
motion for
preliminary injunction is denied; and plaintiffs' claims are denied for
lack of
merit.
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n2 Judge Crotty declined to issue a temporary restraining order after
learning
that plaintiffs' irreparable harm argument was based on the harm to
mature
trees, and that the issue had become moot since the trees had already
been
razed. Transcript for Hearing on Temporary Restraining Order of
September 7,
2006 ("TRO Tr.") at 45, lines 5-22. Moreover, Judge Crotty found that
the balance of equities tipped "substantially in favor of the
defendants
here."
n3 Rule 65(a)(2) provides that "[b]efore or after the commencement of
the
hearing of an application for preliminary injunction, the court may
order the
trial of the action on the merits to be advanced and consolidated with
the
hearing of the application." Fed.R.Civ.P. 65(a) (2).
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BACKGROUND n4
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n4 Except where indicated, there are no genuine issues regarding the
following
facts.
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The
Although the question before us now is narrow in scope -- specifically,
whether
the NPS acted arbitrarily and capriciously in approving the conversion
of
federal parklands -- we believe it to be important to put plaintiffs'
current
challenge in context. To this end, we will review in some detail the
origins of
the project to build a new Yankee Stadium, the various opportunities
for public
review and challenges to the project [*7] which occurred
throughout
the process, the changes to the project made in response to public
concerns,
and the administrative and judicial proceedings that have been
associated with
the plaintiffs' efforts to block the project.
A. Final Plan for the Project:
New
Facilities and New Parklands
When the project to build the new Yankee
Stadium and its surrounding parklands is finished, the City of New York
and the
residents of the South Bronx will have a complete replacement of all
parkland
facilities torn down as a result of construction, and an expansion of
total
parkland acreage available for their enjoyment. The final plan for the
new
Yankee Stadium involves construction on 22.42 acres of
Upon completion of the new stadium, the
land which constitutes the footprint of the old stadium and other
adjacent land
will be developed into new parklands, with baseball, soccer, tennis,
and
basketball facilities, a track, and passive recreational space for
sitting,
strolling, and picnics. See FEIS at 22-17 to 22-19, 22-20 to 22-22.
All existing ball fields will be replaced
with new ones, centrally located at the former situs of the original
Yankee
Stadium, and in the vicinity of those which were displaced. n5
FEIS at
22-18, 22-21. West of these new ball
fields will be a new 400 meter athletic track, and a full-size soccer
field
will replace the existing track and field in
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n5 These ball fields will be placed 600 feet away from those which they
will
replace. See FEIS at 22-21.
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The new parklands will include riverside
access to the
Ruppert Place, a street within the
central park area, will be converted into a landscaped walkway, to be
named
"
These new parklands will be the fruit of
a significant investment from the City of New York, which has committed
upwards
of $ 130 million to renovate and create new parks in the South Bronx as
part of
the overall effort to construct a new Yankee Stadium. Laird Decl. P
23. When combined with the City's other
financial commitments in the Bronx, there will be a near $ 500 million
spent to
improve parks in the
B. Administrative and Procedural
History
The final plan for the new Yankee
Stadium is part of a comprehensive plan to transform the existing
landscape in
the
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N6 Joshua Laird, the Assistant Commissioner for Planning and Natural
Resources
with the DPR, notes that because the project would affect parkland and
open
space in the City, the DPR acted as a
lead agency under SEQRA and CEQR, and that early on in the process, the
City
asked for and received input from the NPS and the New York State Office
of
Parks, Recreation, and Historic Preservation ("OPRHP"), in order to
enable the NPS to use the FEIS in its evaluation of the project's
compliance
with the NEPA and the L&WCFA's conversion requirements. See
Laird Decl.
PP 8, 31.
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- [*14]
NPS's initial involvement with regard to coordination started in March
of 2005,
when the OPRHP contacted the NPS with regard to a proposal to convert
part of
Macomb's Dam Park for the construction of the new Yankee Stadium. See
Conversion of L&WCF-Assisted Site:
The NPS then requested a site visitation in response to the State's
inquiry;
the site visit regarding the conversion application for the northern
section of
On June 19, 2005, the
The DPR began preparation of a Draft Environmental Impact Statement
("DEIS"). Laird Decl. P 32. After a Draft Scope for the Environmental
Impact Statement ("EIS"), setting forth proposed analyses and
methodologies, was presented at a public scope meeting on July 18,
2005, the
public, governmental agencies, community board, and elected officials
were
invited to comment on it.
During the period between the Draft Scope and the Final Environmental
Impact
Statement certification, the public, including the plaintiffs, had
opportunities to contribute and affect the plans of the project. In
total, 155
substantive comments from various parties were received on the DEIS,
and the
FEIS incorporated and responded to each of them.
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n7 Many of the plaintiffs made numerous public comments during this
process.
See Laird Decl. P 36; see generally FEIS Chapter 25 ("Responses to
Comments on DEIS") (responding to comments submitted by representatives
from SOP and Bronx Council, and individual plaintiffs Frances Tejada,
Geneva
Hester, and Albertha Hunter).
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In addition, members of the public, in response to the DEIS, stated a
desire
for more contiguous park area, a concentration of ball fields
closer [*18] to the neighborhood areas, and a schedule which
would
better accommodate the public's access to park recreation while
construction
proceeded by minimizing the duration of unavailability of park
facilities.
Laird Decl. PP 14, 18. As a result, the project was adjusted to create
a total
of 24.56 acres of park land, including a unified, contiguous park of
17.36
acres -- an area larger than the displaced parkland at issue.
The placement of the new tennis courts was adjusted as well to reflect
concerns
of the public which were voiced in reaction to the DEIS. Originally,
the plan
was to have the tennis courts situated more centrally, on a portion of
Pursuant to the City's ULURP, the DPR submitted several land use
applications
to the New York City Planning Commission (the "CPC"). These were
referred [*20] to Bronx Community Board 4 and the Bronx
Borough
President in accordance with Article 3 of the ULURP. Laird Decl. P 43.
On
November 22, 2005, Bronx Community Board 4 held a public hearing with
regard to
the applications and adopted a resolution recommending their
disapproval.
Upon unanimous adoption by the CPC, the ULURP applications came before
the New
York City Council. The City Council held further public hearings, upon
due
notice, on the CPC decisions and applications on March 28, 2006.
[*21]
The FEIS included an analysis of the proposed conversion and its
compliance
with the requirements of the L&WCFA. See FEIS at 4-10 to 4-16.
However,
since the Alternative Park Plan differed from that of the original
DEIS, the
NPS suggested that OPRHP provide another opportunity to comment upon
the
revised plans for conversion before seeking final approval from NPS.
See Email
from Pat Gillespie, NPS, to Michael Wilson and Wayne Strum, NPS (Feb.
16, 2006,
08:56 EST) ("Re: Update on
After this final round of [*23] notice, comment, and
response, OPRHP
submitted a formal request for NPS conversion, on June 27, 2006;
materials from
the environmental review process and other supporting documentation for
NPS
were submitted to the NPS to be considered as part of its
administrative
record. See Letter from Kevin Burns, Alternate State Liaison Officer,
OPRHR, to
Jean Sokolowski, New York State Project Manager, NPS (June 27, 2006)
(formally
requesting approval of conversion). This submission initiated the
second phase
of the NPS's involvement: that of its evaluation of the compliance of
the
proposed conversion with L&WCFA § 6(f)(3). Given the NPS's
extensive
participation in the preparation of the environmental review reports,
it was
able to review and approve the conversion request in a relatively short
period
of time. On July 14, 2006, the NPS found that the conversion would have
no
significant impact on the environment. See FONSI. A few days
thereafter, on
July 17, 2006, the NPS approved the conversion as having met the
requirements
set forth by Section 6(f)(3) of the L&WCFA, concluding that the
replacement
parkland would be of at least equal fair market value and of reasonably
equivalent [*24] usefulness and location, that the
conversion was in
accordance with the Statewide Comprehensive Outdoor Recreation Plan for
New
York, and that all practical alternatives had been considered. See
Summary of
Conversion Process at 1. The NPS approved an amended NPS grant
agreement to
substitute the parcel to be converted in Macomb's Dam Park with the
replacement
parcels, see Amendment to Project Agreement, Project Amendment No. 5
(July 17,
2006) ("Project Agreement Amendment"), and formally notified the
State of the amendment the following day. See Letter from Jack W.
Howard,
Manager, Recreation, Conservation and Grants Assistance, NPS, to Kevin
Burns,
Chief Bureau of Grants Management, OPRHP (Jul. 18, 2006).
Plaintiffs, n8 despite the opportunities afforded them for comment
throughout
the administrative process of approval of the project and the resulting
adjustments made to the project's plans, were unsatisfied with the
ultimate
approved project. Thus, on August 2, 2006, shortly before the CPLR's
Article 78
four month statute of limitations was due to expire and two weeks
before
construction was slated to begin on August 17, 2006, plaintiffs sued
the City
and the Yankees [*25] in the Supreme Court of the State of
New York,
seeking both a temporary restraining order and a preliminary
injunction. See
Declaration of David Paget ("Paget Decl.") P 2; Parks v. City of
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N8 We understand that there is not a complete identity between the
plaintiffs before
us here and those of the state court proceedings. However, there is
significant
overlap, as both sets of plaintiffs include SOP and the Bronx Council.
The only
difference between the plaintiffs in the present case and those in the
state
case arises from the individual plaintiffs. The individual plaintiffs
are
members of these two groups suing in their personal capacities. These
members
do not suggest that they do not share identical concerns with regard to
the
building of the new park and its attendant consequences on the environs
of
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- [*26]
On August 11, 2006, Justice Cahn held a hearing with regard to
plaintiffs'
motion for a preliminary injunction, and after an expedited briefing
schedule,
he denied plaintiffs' motion on August 15, 2006. See Save Our Parks,
2006 N.Y.
Misc. LEXIS 2365. Justice Cahn concluded that plaintiffs failed to show
a
likelihood of success on the merits of their claim that the FEIS'
evaluation of
the project and its attendant environmental impact on the community was
insufficient.
Subsequent to the state court decision, $ 955 million worth of bonds
were sold
to finance the project; these bonds are to be repaid starting in 2009,
financed
from projected increased revenues generated by the new Yankee Stadium.
See
Declaration of Lon Trost ("Trost Decl.") P 34. Construction on the
project began on August 27, 2006. Phillips Decl. P 10. In addition,
construction has begun at the stadium site. As of mid-September, the
construction site contained a 200 by 600 foot hole, the size of a city
block,
about 15 [*28] feet deep, with soil being removed at the
rate of
140,000 cubic feet per day. See Phillips Decl. P 10.
DISCUSSION
We will now turn to the discussion of the merits of the plaintiffs'
complaint,
which, as noted above, has been consolidated with plaintiffs' request
for
preliminary injunctive relief.
A. The Land and Water
Conservation
Fund Program
Congress established the Land and Water
Conservation Fund Program to preserve and protect the quality and
quantity of
outdoor recreation resources for the public by providing, among other
things,
federal funds and assistance to states in planning, acquisition, and
development of needed land and water areas and facilities. See 16
U.S.C. §
460l-4. To this end, Section 6 of
the L&WCFA authorizes the Secretary of the Interior to provide
financial
assistance to states, subject to several requirements. See id. § 4601-8. Section 6(f)(3), at issue in the
present case, prohibits any property acquired or developed with
L&WCF
assistance from being converted from public outdoor recreational use
unless the
Secretary of the Interior approves the conversion.
B. Standard of Review for
NPS's
Determination
A challenge to the NPS's determination
that a conversion meets the requirements of L&WCFA § 6(f)(3)
is reviewed
using the "arbitrary and capricious" standard of the Administrative
Procedure Act ("APA"). See 5 U.S.C. § 706(2) (A); Sierra Club
v.
Davies, 955 F.2d 1188, 1192 (8th Cir. 1992). The arbitrary
and capricious standard of review is "particularly
deferential." Envt'l. Def. v.
C. Plaintiff's Objections to NPS
Approval
of the Conversion
Plaintiffs object to several aspects
both of the procedure the NPS followed in evaluating the proposed
conversion of
the northern portion of the Macomb's Dam Park, The plaintiffs'
objections
to the NPS's procedure are that the NPS
did not neutrally nor objectively evaluate the proposed conversion,
that
the NPS failed to adequately evaluate
alternatives to the conversion, and that the NPS did not evaluate the
project
for compliance with the New York Statewide Comprehensive
Outdoor [*31] Recreation Plan, or SCORP. In addition, plaintiffs contend that the NPS's decision
to allow for the conversion was in contravention of the L&WCFA, in
that the
replacement parcel was not reasonably equivalent in usefulness and
location,
and was not of at least equal or fair market value, mainly because the
NPS
unduly relied upon the state and local assessments of the project.
We shall
address each of these in turn.
1. NPS as a Neutral and
Objective
Decisionmaker
Plaintiffs argue that in light of the NPS's early involvement with the
project's development and the preparation of the EIS, it did not
objectively
evaluate the conversion request, but, instead, acted as an "interested
party advocating for the conversion of
Plaintiffs' suggestion that the communication and coordination between
the NPS,
the OPRHP, and the DPR are indicia of a failure of the NPS to execute
faithfully its duties under the L&WCF is misplaced, and their
reliance on
the above email misguided. First, early
consultation between state actors and the NPS is contemplated by
Congressional
findings and the declaration of policy supporting the L&WCFA, and
is
promoted by both the NPS regulations and the Land and Water
Conservation Fund
Grants Manual ("L&WCF Manual"). See, e.g., 16 U.S.C. §
4601 [*33] ("The Congress finds and declares . . . that it
is desirable for all levels of government and
private interests to take prompt and coordinated action to the extent
practicable . . . to conserve, develop, and utilize [recreational]
resources
for the benefit and enjoyment of the American people."); 36 C.F.R.
§
59.3(c) ("[A]mendment requests [by the State] should be submitted
concurrently with conversion requests or at such time as all details of
the
conversion have been worked out with NPS"); L&WCF Manual ch.
630.2.12
("When a State wishes to change its project it should discuss the
proposed
changes with the Regional Office personnel prior to submitting an
amendment to
the project agreement."). In addition, one aspect of the consideration
of
a proposed conversion is a review under the National Environmental
Policy Act,
or NEPA, to determine whether the proposed conversion will have any
significant
impact on the environment. See 42 U.S.C. §§ 4321-4347;
L&WCF Manual ch.
650.2. The streamlining of state and federal review processes is
encouraged by
federal NEPA regulations as well as the L&WCF Manual.
See [*34]
40 C.F.R. § 1506.2(b) ("Agencies shall cooperate with State and
local
agencies to the fullest extent possible to reduce duplication between
NEPA and
State and local requirements . . . ."); L&WCF Manual ch. 650.2.3
("A State that has environmental laws equivalent to or more stringent
than
NEPA may submit environmental documentation meeting both State and
Federal
requirements."). Thus, plaintiffs'
decrying of the coordination between agencies and levels of government
not only
contradicts the guidance of Congress and established agency practice,
but would
invite duplication and inefficiencies to the detriment of taxpayers.
Second, plaintiffs' argument ignores the full context of the OPRHP's
efforts to
effectively and efficiently coordinate the review of the project's
compliance
with numerous regulatory and statutory requirements of three levels of
government. Since both state and local
laws independently required the DPR to prepare a comprehensive
Environmental
Impact Statement, spanning all components of the proposed project, the
NPS,
consistent with the above-cited regulations, advised the OPRHP to
ensure that
the DPR's EIS also included a review of the proposed [*35]
conversion. See Summary of Conversion Process at 1; Fed Mem. Opp.
at 6. This review of the conversion would then be
reviewed by the NPS and, if found acceptable, used as the environmental
assessment for purposes of compliance with NEPA and for evaluation of
the
conversion under L&WCFA § 6(f)(3). See Fed Mem. Opp. at
6-7; Summary of
Conversion Process at 1; E-mail from Pat Gillespie, NPS to Thomas
Lyons, OPRHP
(June 10, 2006 16:05 EST) ("Re: NPS comments -- Next Steps/Agreements
from
meeting with NYC Parks").
Following the June 7, 2005 site
inspection, the DPR and the OPRHP continued the planning and review
process
encompassing, as we discussed earlier, the preparation of the DEIS and
the
FEIS, public hearings, and City Council approval. The formal
application for conversion of
2. NPS's Evaluation of
Alternatives
Plaintiffs state that the NPS failed to
meet its obligations for conversion approval pursuant to the L&WCFA
in that
the NPS did not undertake an independent analysis as to whether "[a]ll
practical alternatives to the proposed conversion ha[d] been evaluated."
See Mem. Supp. at 27-29 (quoting 36 C.F.R. § 59.3(b)(1)).
Plaintiffs' argument
is simply contradicted by the written record. An entire
chapter of the FEIS evaluates the feasibility of all
alternatives suggested by the plaintiffs, including their preferred
construction of the new stadium on the current site of the park.
See FEIS
at ch. 22. Specifically, with respect to plaintiffs' preferred
alternatives, the FEIS concluded: (1) that the new stadium
would be too large for the current site and would protrude into the
southern
portion of Macomb's Dam Park west of Ruppert Plaza, without freeing up
any land
for the development of replacement [*38] parkland, thus
forcing
displaced ball fields to be relocated at the Harlem River waterfront
parcel, in
contravention of the desires of the community; (2) that reconstruction
at the
current site would not allow for new parking facilities to be
constructed,
which would result in a failure to alleviate the current on-street
parking problems
in the areas surrounding the stadium; and (3) that such a plan would
require
moving the Yankees to Shea Stadium, the home of the Mets, depriving the
Yankees
of a major source of revenue from team sponsors for a period of four
years.
See id. at 22-5 to 22-6.
Moreover, NPS made specific findings
with regard to the examination of viable alternatives, concluding that
the
analysis in the FEIS was responsive to comments by plaintiff Save Our
Parks
which suggested that not all practical alternatives had been adequately
evaluated. See Conversion Comments and Responses at 6-10; FONSI at
2
(noting that alternatives had been considered, including
plaintiffs' preferred "rebuilding at the current
site," but that none "proved viable in meeting the project goals and
objectives"). The NPS has fulfilled its obligations under the
regulations.
Pursuant to 36 C.F.R. §
59.3 [*39] , a State Liaison Officer must submit a request
for
permission to convert federally funded property to a NPS Regional
Director in
writing. While the NPS will only
consider the conversion request if the request meets a list of several
requirements, including that "[a]ll practical alternatives to the
proposed
conversion have been evaluated," 36 C.F.R. § 59.3, the regulations do not require the NPS to
undertake an independent evaluation of all practical alternatives to
the
proposed conversion. Rather, the only
NPS mandate is to ensure that the state has done this analysis prior to
the
submission of a conversion. Thus, plaintiffs
seek to measure NPS's obligations under a standard far more expansive
than the
limited one that actually applies to the NPS.
Finally, we note the state court's
rejection of plaintiffs' "claim that the FEIS's discussion of
alternatives
to the project was 'superficial and disingenuous,' or that the
discussion fails
to provide the information necessary to make a rational choice between
these
other options." n9 Save Our Parks v. City of New York, Index No.
110836/06, 2006 N.Y. Misc. LEXIS 2365,. at *24 (N.Y. Sup.
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n9 Indeed, this conclusion by Justice Cahn precludes plaintiffs from
alleging
that the NPS failed to consider viable alternatives in their arguments
on the
merits of this case, under the principles of collateral estoppel. See
Pl.
Compl. P 70; Mem. Supp. at 27-29; Save Our Parks, 2006 N.Y. Misc. LEXIS
2365 at
*24; see also discussion infra note 11 (discussing the collateral
estoppel
effects of the state case upon the present controversy).
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3. The Project's Compliance
with the
NY SCORP
Plaintiffs also argue that it is
"not clear from the record" that NPS conducted an independent review
of the project's compliance with the SCORP. Mem. Supp. at 31. Plaintiffs' main contention for this is
that the NPS did not address how the SCORP's goals are met by "the
removal
of existing parkland and the destruction of nearly 400 mature trees
with the
intention of creating other parkland in the future and [*41]
waiting
generations for replacement trees to mature."
4. Reasonable Equivalence in
Usefulness and Location
Plaintiffs further contend that the
substitute properties are not of "reasonably equivalent usefulness and
location" pursuant to the L&WCFA because: (1) the
recreational facilities to be placed at the site of the current
Yankee Stadium will not be available to the community for some period
of time,
[*42] thus failing to meet the Secretary's standard for
substitute
properties; (2) there are no
guarantees that replacement facilities will ever be built; (3) the substitute properties do not
adequately replace the current park's function as the community's
"buffer
zone" with regard to the existing Yankee Stadium; and (4)
the substitute properties do not meet
the recreation needs of the community because they include "passive"
areas with no recreation facilities and because they are intended
primarily for
private or non-community use. Mem. Supp. at 3-4. Although we shall
address
each of these concerns specifically below, we
note at the onset the high degree of deference this Court should afford
the NPS
in its conversion determination. Our role in evaluating the agency's
decision
to approve of the conversion is not to ask whether we would have come
to the
same conclusion, but instead to determine whether the NPS so erred in
its
decision to approve the conversion as to constitute an abuse of its
discretion.
Section 6(f)(3)'s [*43]
promulgated standards afford a considerable degree of discretion to the
Secretary of the Interior, and the NPS through delegation, to approve
of
proposed conversions "upon such conditions as [the Secretary] deems
necessary," in order to ensure that any converted parkland is replaced
with land of "reasonably equivalent usefulness and location." See
L&WCFA, 16 U.S.C. § 4601-8(f)(3).
In other words, the Secretary and the
NPS may impose conditions upon a conversion in order to ensure that the
replacement land is, by their own determination, of reasonable
equivalence.
This high degree of discretion afforded the NPS under the L&WCF, in
combination with the deferential standard for review of agency
determinations
pursuant to the APA, informs the proper scope of our review.
As we discuss the various arguments raised by plaintiffs, it should be
recalled
that the planned conversion replaces a
10.67 acre piece of parkland with 16.44 acres of new parkland, a gain
of nearly
6 acres, along with brand new recreational facilities to replace those
razed
over the course of construction. The majority
of this parkland will remain centrally located, directly across
the [*44] street from the land replaced, and the remainder
will
consist of newly accessible waterfront parkland on the banks of the
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n10 It is also worth noting that the
regulations governing L&WCFA conversion do not require close
proximity
between the converted parklands and their substitute grounds. See 36
C.F.R. §
59.3(b)(3)(ii) ("Replacement
property need not necessarily be directly adjacent to or close by the
converted
site. This policy provides the administrative flexibility to determine
location
recognizing that the property should meet existing public outdoor
recreation
needs."); see also L&WCF
Manual ch. 675.9.3 ("[T]he replacement
property need not provide identical recreational experiences or be
located at
the same cite, provided it is in a reasonably equivalent location.").
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First, plaintiffs argue that they will not be able to access the
replacement
facilities for [*45] a period of time while construction is
completed. In support, plaintiffs point to language, contained both
within the
regulations and the L&WCF Manual,
stating "[o]nce the conversion has been approved, replacement property
should be immediately acquired." See Supp. Mem. at 2-4 (quoting 36
C.F.R. § 59.3(c) and L&WCF Manual ch. 675.9.3C). Based
on this language, plaintiffs contend that the delay in access to
the replacement facilities is contrary to law. Although plaintiffs'
interpretation of the quoted
language is plausible if read in isolation, it is not so when read in
the
broader context of the regulations. The title of the subsection of
the
regulations upon which plaintiffs rely is "Amendments for
Conversion", and requires that "amendment requests [to the original
project agreements] should be submitted concurrently with conversion
requests
or at such time as all details of the conversion have been worked out
with
NPS." 36 C.F.R. § 59.3(c). Thus, the regulations
only require that the federal government immediately acquire the
replacement
land for the converted' parcel upon the NPS's approval of a conversion
request;
this acquisition [*46] is
demonstrated by an amendment to the original project agreement
memorializing
the conversion of the L&WCF parcel and its replacement with a
substitute
parcel. The NPS is not required by
the regulations to reject a conversion proposal if the proposed
substitute
parcels are not immediately available to the public as equivalent
recreational
parklands, but instead must only amend the original project agreement
to
substitute the replacement parcel for the parcel of land which was
converted.
See 36 C.F.R. § 59.3(c). This was done in the present case on
July 17,
2006, immediately after the NPS's conversion approval. See Project
Agreement
Amendment.
In addition, defendants point to other portions of the L&WCF Manual
and
regulations which suggest that the L&WCF program does not require
immediate
availability of replacement facilities at the time of conversion.
Specifically,
they note that the NPS regulations even recognize that in certain
instances it
may not be possible for "replacement property to be identified prior to
the State's request for a conversion," thus calling into question
plaintiffs' assertion that a delay in access to replacement parkland
should [*47] have led the NPS to reject the project's
conversion
request. See 36 C.F.R. § 59.3(c). Further, the L&WCF Manual's
rules for
parkland acquisition are explicit in their contemplation of a delayed
development of parklands, allowing for the acquisition of "property for
which the development of outdoor recreation facilities is planned at a
future
date" if "[i]n the interim . . . the property [is] open for those
public recreation purposes which the land is capable of supporting or
which can
be achieved with a minimum public investment." L&WCF Manual ch.
640.2.8 (allowing for delay in development); see also id. ch.
675.9.3.B4
(incorporation of parkland acquisition regulations by reference into
rules for
conversion).
We also note that plaintiffs' objections to the timeframe should also
be
considered within the context of adjustments made by the DPR and the
OPRHP to
accommodate the community's concerns with regard to access to
facilities during
construction. Indeed, as a specific
response to a comment from plaintiff Save Our Parks with regard to the
EIS, the
OPRHP noted that "every effort has been made to ensure that [the
replacement facilities] will be [*48] available for use by
the
community as quickly as possible after the conversion parcel is taken
out of
use. As described in the FEIS, a
construction schedule has been developed that would minimize, to the
maximum
extent practicable, the time that recreational facilities would be
unavailable." Conversion Comments and Responses at 23 (Response to
Comment 26). These accommodations include: (1) construction of an
interim
playing field and track on the site of Yankees Parking Lot Number 1;
(2)
potential plans to delay construction of the tennis courts to allow for
temporary
baseball fields along the Harlem River until the permanent structures
can be
built; and (3) meeting with groups of individuals who use Macomb's Dam
Park
field to help them find alternative existing parks in the area.
Second, plaintiffs object to the
adequacy of the substitution on the basis that "there appears to be
nothing that guarantees that the [replacement] facilities will be built [*49]
at all." Mem. Supp. at 21; see also Repl. Mem. at 3-4. Under
the L&WCFA, states who are
beneficiaries are held to binding agreements, which must be amended
pursuant to
a conversion. See L&WCF Manual ch. 660.2 (detailing application
and
amendment procedures for L&WCF projects, noting that agreements
must
"set forth the obligation assumed by the State through its acceptance
of
Federal assistance, including the rules and regulations applicable to
the
conduct of a project under the Act and any special terms and conditions
to the
project established by the [NPS] and agreed to by the state," id. ch
660.2.5.A.1). Plaintiffs argue that agreements obligating
In [*51] addition, the question as to whether
or not the State will ultimately provide for the recreational
facilities outlined within the scope of the project itself is not
something
that is currently ripe for consideration. At the present
time, there is no reason not to take the State at its word with
regard to its intention to create new parklands for the residents of
the
Third, plaintiffs contend that the
substitute properties do not adequately replace the current park's
function as
the community's "buffer zone" with regard to the existing Yankee
Stadium. For this, plaintiffs rely heavily on Friends of the
Shawangunks,
Inc. v.
Fourth, plaintiffs argue that the
substitute properties do not meet the recreational needs of the
community
because they include "passive" areas with no recreation facilities
and because they are intended primarily for private or non-community
use.
Neither of these assertions withstands an examination of the proposed
project. As noted earlier, new recreational
facilities are designed specifically to replace all existing fields and
courts.
Although the replacement parkland will include passive park space, this
space
does not come at the expense of the "active" recreational facilities.
Nor is the capacity for passive park use an undesirable feature of the
new
parklands, by any standard. See, e.g., L&WCF [*55]
Manual
ch. 640.2.2 (noting that areas acquired with L&WCF funding "may
serve
a wide variety of outdoor recreation activities," including "walking
for pleasure" and "picnicking"); New York SCORP for 2003, ch. 2,
at 43-44 (identifying high demand for "general park uses," which
include "[r]elaxing in the park; picnicking; playground use, etc."). In addition, plaintiffs' objection that the
tennis courts will be run by a private concessionaire during the
winter, see
Mem. Supp. at 8, is equally baseless since the new courts are to be
operated in
the same manner as the old ones were. User fees are to be charged
with
oversight by the DPR, which has traditionally required not only that
below
market rates be charged, but also that the private concessionaire
provide free
or low-cost court time for tennis programs targeting low-income
children.
Conversion Comments and Responses at 16-17.
5. Equal Fair Market Value
Plaintiffs argue that the method the NPS
used in order to ensure the substitute properties were of "equal fair
market value" was flawed in that the NPS "did not comply with either
accepted appraisal practices," nor did it, in plaintiffs' view, conform
with federal appraisal [*56] guidelines. Mem. Supp. 4.
As a
result, plaintiffs contend that the
substitute properties are not of equal fair market value because: (1)
the
stadium property is encumbered with a lease that allows the Yankees to
continue
to play at the site, and (2) because both the stadium and the
waterfront
property may require remediation for contamination, thus compromising
their
value.
Plaintiffs' argument in this regard
proceeds from a fundamental misunderstanding of the requirement that
substitutions for converted lands be of property of at least equal fair
market
value. Rather than providing a basis for community members to
challenge
projects, the requirement exists to
protect the federal government in their budgetary allocation to the
L&WCF.
Section 6(f) is structured to ensure proper accounting procedures and
fiscal
oversight of L&WCF allocation. See 16 U.S.C. §
4601-8(f)(1)-(8). The
equal fair market value requirement ensures that L&WCF grants are
not squandered
as a result of a conversion which
replaces L&WCF-sponsored lands with property which is less
valuable,
resulting in a net loss of federal investment. See, e.g., 36
C.F.R. §
59.3 [*57] (explaining purpose behind requirements for
conversion);
L&WCF Manual ch. 675.2.E4 (fair market value of parkland is used
"as
the basis of L&WCF assistance"). Thus, the sole
rationale behind the requirement that the NPS evaluate the
conversion at issue here is to ensure that the initial investment made
by the
federal government -- $ 302,914.21 -- is not lost when the parkland
currently
protected by the L&WCFA is converted and substituted with another
parcel of
land. Here, the protection of the
federal investment in building fields and courts is assured by the
replacement
of all these facilities as provided for in the project.
One consequence of the properly understood purpose of the equal fair
market
value requirement, which defendants note, is the effect on plaintiffs'
standing
to challenge the NPS's reliance on state certification. Even
assuming that the replacement parcel of land is of less than equal
fair market value, the injury is a fiscal one borne solely by the
government.
In the absence of any particularized injury which harms them "in a
personal and individual way," Lujan v. Defenders of Wildlife, 504
Plaintiffs also attack the NPS's
reliance upon documents and assessments prepared by others.
Such
reliance is provided for in the L&WCF Manual. When states apply to the NPS
for conversion approval, they must certify
that appraisals of the properties at issue have been prepared in
accordance
with federal standards, and that the replacement parcel meets the
requisite
equal fair market value standard. See L&WCF Manual ch. 675.9.3.B2
(state certifications may be used instead of submissions of separate
appraisals
prepared pursuant to the Manual); Id. ch. 675.5.4 (standards for
grantee
financial management, applicable to state and local government
systems);
Memorandum from NPS, Associate Director, Cultural Resource Stewardship
and
Partnerships, to NPS Regional Directors (Jul. 9, 1998)
[*59] P 3
(making this practice standard procedure). Regular program compliance
reviews
of state grantee agencies by means of random selection of recent
appraisals for
NPS review provide a mechanism to guard against fraudulent or
negligently
prepared certifications. See L&WCF Manual ch. 600.8.4.C8. If the
NPS finds
noncompliance, it may require the state to take appropriate corrective
measures
or impose appropriate penalties. See id. ch. 675.9.10 (list of
potential penalties
for noncompliance).
Plaintiffs try to construe language in Chapter 675.9.3.B2 of the
L&WCF
Manual as requiring the NPS to independently review appraisals for
conversion.
See Supp. Mem. at 8. The section of the Manual which plaintiffs cite
reads as
follows:
Generally,
this will necessitate a review of appraisals prepared in accord with
Chapter
675.2 for both the property proposed to be converted and that
recommended for
substitution. However, at the discretion of the Regional Director, a
State
certification that appraisals of both properties are acceptable and
reveal that
the replacement property is of at least equal fair market value as that
of the
property to be converted can be accepted. Exercising [*60]
this
authority should be consistent with the State's review responsibilities
with
respect to donation appraisals. (see 675.2.6E)
L&WCF Manual ch. 675.9.3.B2. Plaintiffs assert that the substitute
parcel
here constitutes a donation, and that pursuant to chapter 675.2.6E of
the
Manual, "the Regional Director may authorize the State Liaison Officer
to
review and approve donation appraisals where the value of the property
to be
donated is $ 100,000 or less."
Nor is there a basis to challenge the
NPS's practice of reliance on assessments provided by state and local
agencies
as a means of protecting the expenditure of federal funds. We note
that
uniform federal regulations, applicable to all federal grant programs,
state
that in analogous situations where it is necessary to establish the
market
value of land, "the Federal agency may require the market value or fair
rental value be set by an independent appraiser, and that the value or
rate be
certified by the grantee." 43 C.F.R. § 12.64(g); see generally
Uniform
Administrative Requirements for Grants and Cooperative Agreements to
State and
Local Governments, 53 Fed. Reg. 8,034, 8,034-35, 8,077 (Mar. 11, 1988)
(policy
of certification is part of uniform federal grant regulations);
Administrative
and Audit Requirements and Cost Principles [*62] for
Assistance
Programs, 43 C.F.R. § 12.1-12.51, L&WCF Manual ch. 675.3
Attachment A.
Plaintiffs' only support for a contrary conclusion stems from their
reliance on
Schicke v. Romney, 474 F.2d 309 (2d Cir. 1973). In Schicke, petitioners
challenged the Department of Housing and Urban Development ("HUD")
Secretary's approval of a parkland conversion under a statute which
parallels
L&WCF § 6(f)(2). See id. at 312 (statute limited the
Secretary's capacity
to approve of parkland conversion "only upon such conditions as he
deems
necessary to assure the substitution of other open-space land of at
least equal
fair market value and of as nearly as feasible equivalent usefulness
and
location"). However, the Second Circuit's objection to the HUD's action
in
Schicke was not their assessment of equivalence; instead, the court
took issue
with the fact that the HUD had neglected to adequately ascertain
whether the
proposed conversion conformed to the City of Norwalk's comprehensive
plan,
pursuant to the authorizing statute.
Plaintiffs further posit that "other circuits have similarly held that
a
federal agency, absent statutory or regulatory authority[,] cannot
delegate its
duties to a state agency." Repl. Mem. at 10 (citing Southern Natural
Gas
Co. v. Pontchartrain Materials, Inc., 711 F.2d 1251 (5th Cir. 1983);
Memorial
Hospital of Roxborough v. NLRB, 545 F.2d 351 (3d Cir.
1976)). [*65]
However, the cases cited by plaintiffs are inapposite, since the NPS
has not
delegated its duty to evaluate proposals for conversion. To the
contrary, there is a comprehensive system in place
which allows the NPS to rely upon assessments made by the state in
their
applications for conversions, in order to eliminate needless
duplication.
The decision to approve of the
conversion was made entirely by the NPS in the present case.
Finally, even assuming that land
appraisals were required to evaluate the substitution when the federal
investment was for fields and courts and the replacement land parcels
were
larger than the parcel to be converted, the three appraisals submitted
in
support of the conversion process and relied upon by the NPS were
sufficiently
reliable to constitute a reasonable basis for the NPS's approval of the
conversion. While plaintiffs submit a declaration from an
appraiser, Mr.
Gelbtuch, who endeavors to impeach the methods employed by the
defendants'
licensed, certified and professional appraisers, Mr. Gelbtuch does not
proffer
a materially different bottom line appraisal. See Decl. Gelbtuch PP
19-22. Recognizing, as we do, that appraisal is
not an exact science, [*66] plaintiffs' submission does not
provide
a sufficient basis for us to depart from the traditional deference owed
to an
agency's expertise in matters of fact finding. See Dorman v.
Harris, 633
F.2d 1035, 1036 (2d Cir. 1980) ("Fundamental tenets of administrative
law
and sound judicial administration require that courts show some measure
of
deference to an agency's findings of fact. Evaluations of . . . complex
information are best performed by those who . . . have special
expertise in the
particular subject matter."). Thus, we
conclude that the NPS's determination that the substitution parcel
would be of
at least equal market value as compared to the parcel to be converted
was not
arbitrary or capricious.
D. Plaintiffs' Motion for
Preliminary
Injunction
Ordinarily, in this circuit, for plaintiffs to obtain a preliminary
injunction,
they "must show irreparable harm absent injunctive relief, and either a
likelihood of success on the merits, or a serious question going to the
merits
to make them a fair ground for trial, with a balance of hardships
tipping
decidedly in plaintiff's favor." Louis Vuitton Malletier v. Dooney
&
Bourke, Inc., 454 F.3d 108, 114 (2d Cir. 2006) [*67] (citing
Jackson
Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.
1979) (per
curiam)); see also Otokoyama Co. v. Wine of Japan Import, Inc., 175
F.3d 266,
270 (2d Cir. 1999). However, in situations where the moving party seeks
a
preliminary injunction which would affect "government action taken in
the
public interest pursuant to a statutory or regulatory scheme, the
injunction
should be granted only if the moving party meets the more rigorous
'likelihood-of-success standard.'" No Spray Coalition, Inc. v. City of
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n11 Although we need not reach the issue of irreparable harm given our
conclusions with regard to the merits of the claims brought here, the
plaintiffs also failed to show irreparable harm sufficient to warrant a
preliminary injunction. Plaintiffs have argued inter alia, over the
course of
their pursuit of relief, that they will suffer irreparable harm: (1)
from the
loss of mature trees, Mem. Supp. 16; (2) from the loss of a "buffer"
zone of parkland between their community and Yankee Stadium; and (3)
because
"[t]he more difficult it is to undo what has been done and restore the
park to its proper use, the more difficult it would be for NPS to make
an
impartial determination on the conversion." Pl. Rep. Mem. at 4.
However,
when asked by this court in oral argument to describe the exact nature
of their
claim to irreparable harm in the present case, counsel conceded that,
at its
core, plaintiffs' claim of irreparable harm is duplicative of their
merits-based contentions. See Transcript of Oral Argument, October 5,
2006
("Tr.") at 68 (Plaintiffs' lawyer conceding that he is not
"isolating a sort of separate irreparable harm argument" and that
there is "essentially no distinction at this point between
[plaintiffs']
preliminary injunction argument and [plaintiffs'] argument on the
merits.").
Even if plaintiffs had not made such a concession, they are barred by
the
doctrine of collateral estoppel from invoking several of these
arguments, as
they have already been decided in the state proceeding before Justice
Cahn.
Before the state court, plaintiffs alleged that they would be
irreparably
harmed if the project was allowed to proceed because of the loss of the
northern portion of
Collateral estoppel "precludes a party from relitigating in a
subsequent
action or proceeding an issue clearly raised in a prior action or
proceeding
and decided against that party . . . whether or not the tribunals or
causes of
action are the same." La Fleur v. Whitman, 300 F.3d 256, 271 (2d Cir.
2002) (quoting Ryan v. New York Telephone Co., 62 N.Y.2d 494, 467
N.E.2d 487,
478 N.Y.S.2d 823, 826 (1984)). Thus, we are obliged to give Justice
Cahn's
decision the same preclusive effect as if we were a New York State
Court. See
Full Faith and Credit Act, 28 U.S.C. § 1738; Hoblock v.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*69]
CONCLUSION
For the aforementioned reasons, we find
that the National Park
Service, in its
approval of the proposed conversion of parkland protected by the Land
and Water
Conservation Fund pursuant to the project to build a new Yankee
Stadium, did
not act in contravention of the Land and Water Conservation Fund Act,
16 U.S.C.
§ 4601, part B, nor did it act arbitrarily and capriciously in
violation of the
Administrative Procedure Act, 5 U.S.C. §§ 553, 706(2)(A). Accordingly, plaintiffs' motion
for a preliminary
injunction is denied; defendants' motion for a consolidation of our
review
of plaintiffs' motion for a preliminary injunction and of plaintiffs'
claims on
their merits pursuant to Rule 65(a)(2) is granted; and plaintiffs'
claims are denied for lack of merit.
IT IS SO ORDERED.
Dated:
November 15, 2006
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE