Horsing Around with Conservation: How a Carousel Planned for a Brooklyn Park May Violate the Land and Conservation Fund Act and State Law

Andrew Stengel[1], Albany Government Law Review Member

Introduction

The carousel is a universally beloved amusement ride.  The very thought of a carousel evokes images of smiling children atop colorful faux galloping horses accompanied by the sounds of pleasing circus music.  However, the federal government may not may not be similarly amused with a carousel planned for a park in northwest Brooklyn, New York.

Enter David Walentas, a developer with enormous real estate holdings in Dumbo (Down Under the Manhattan Bridge Overpass),[2] an area in northwest Brooklyn more or less bounded by the East River to the north, Brooklyn-Queens Expressway to the south, Brooklyn Bridge to the east and Manhattan Bridge to the west.[3] Jane Walentas, Mr. Walentas’s wife, recently donated a restored carousel to be placed in Brooklyn Bridge Park, a green space that is under development along the coastline of the area.[4]

The carousel is destined for an area that was once known as Empire Fulton Ferry Park, which was recently conveyed from the New York State Office of Parks, Recreations and Historic Preservation (OPRHP), to the Brooklyn Bridge Park Development Corporation (BBPDC), a state-city body.[5] The nine-acre park, formerly maintained by the OPRHP, juts out to the east of the Brooklyn Bridge and boasts scenic views of New York City Harbor and the Manhattan skyline.[6] The park also features a cove, one of the few places in New York that provides access to the waterfront and is a vibrant location for marine life.[7]

Unknown to most is a “carnival” of federal and state laws that the carousel impacts.  Empire Fulton Ferry Park was the beneficiary of a ten-year-old federal Land and Water Conservation Fund (LWCF) grant that bars conversion of the park area in perpetuity without prior approval from the Department of the Interior.[8] New York’s public trust doctrine similarly bars conversion of the land without prior legislative approval.[9]

Continue reading “Horsing Around with Conservation: How a Carousel Planned for a Brooklyn Park May Violate the Land and Conservation Fund Act and State Law”

New York Power of Attorney: Will Recent Amendments Reduce the Risks of Elder Abuse and Fraud?

Amanda Cluff, Senior Editor, Albany Government Law Review Member

I. Background

One of the most prevalent concerns in both elder and healthcare law is the abuse of rights bestowed upon a durable power of attorney.[1] Numerous stories circulate daily regarding elderly persons who have been financially manipulated by individuals designated to this important role.  A power of attorney is defined as “a legal document through which a principal authorizes an agent [also known as an attorney in fact] to act on the principal’s behalf.”[2] This power usually terminates once the principal—the person who authorizes the power to an agent—becomes mentally incapacitated, or otherwise unable to exert decision-making abilities.[3]

However, when a durable power of attorney is created, the power of attorney continues to remain effective, even after such incapacity occurs.[4] This sort of power can be beneficial in several respects.  First, the durable power of attorney can replace an unfamiliar court-appointed guardian or conservator.[5] In addition, those who are given a durable power of attorney are able to make both personal and property decisions in the best interests of the principal, who lacks capacity to do so.[6] However, the danger of a durable power of attorney is also what makes it beneficial—the durable power of attorney is given virtually unconstrained and very broad authority to handle the principal’s financial affairs.[7] Consequently, this is a power that is difficult to monitor and, therefore, may be subject to various forms of abusive or fraudulent behavior by the agent.

Continue reading “New York Power of Attorney: Will Recent Amendments Reduce the Risks of Elder Abuse and Fraud?”

The Conflicts Between Tribal and State Sovereignty: Will Interference with Tribal Sovereignty be Tolerated?

Alicia Dodge, Senior Editor, Albany Government Law Review Member

I.  Historical Background

The legal doctrine of “tribal sovereignty” is known as “the right of Native American tribal nations to exercise their inherent power to govern their own internal affairs.” [1] Although this doctrine is well recognized by the federal and state governments alike, it has not been interpreted as broadly as the doctrine’s definition would lead one to believe.  Congress is empowered through the Commerce Clause of the United States Constitution to regulate commerce between the states, with foreign nations, and with Indian tribes. [2] Similarly, states also retain the right to regulate the conduct of non-Native Americans on reservations. [3] For example, the United States Supreme Court has held that states may impose sales taxes on goods sold by Native Americans on reservation land to purchasers who are non-Native Americans. [4] In Snyder v. Wetzler, [5] the New York Court of Appeals also determined that New York State has the authority to impose such taxes. [6] Regardless of this authority, currently the more controversial issue is how to properly enforce such collections.

II.  The Implications of New York State Tax Law § 471-e


In 2003, the New York State Legislature “enacted Tax Law § 471-e to require the collection of taxes on cigarettes sold by reservation vendors to non-[Native-Americans].” [7] This law was amended in 2005, and it outlined a tax exemption coupon system. [8] Cigarettes purchased by a tribe member on his or her reservation were to remain tax-free, but any cigarettes purchased by a Native American on another tribe’s reservation or by a non-Native American on a reservation were to be taxed, represented by a tax stamp.[9] The Department of Taxation and Finance (hereinafter “the Department”) was directed to issue coupons to the tribes on a quarterly basis, with the amount determined based upon the “probable demand” of the tribe.[10]

Continue reading “The Conflicts Between Tribal and State Sovereignty: Will Interference with Tribal Sovereignty be Tolerated?”