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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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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