Horsing Around With Conservation Part Two: A Roofless Historical Structure in a Brooklyn Park Hosts Public Outdoor Recreation, But State Parks Claims Otherwise

Andrew Stengel, Albany Government Law Review Member[1]


In a recent post, Horsing Around with Conservation, I explored whether a carousel planned for a park in Brooklyn, New York, violated the terms of a federal Land and Water Conservation Fund (“LWCF”) grant and New York State law.[2] I concluded that the carousel likely violated both.  A second issue, which concerns Empire Fulton Ferry Park (“EFFP”), the same nine-acre park covered in the same LWCF grant, involves an important historical structure called the Tobacco Warehouse.

There are actually two historic structures within EFFP, the Empire Stores, a four-story brick building, built in 1869, and the Tobacco Warehouse, a roofless, four-walled brick structure from the same era.[3] The Empire Stores, which is roofed, is part of the Endangered Buildings Initiative of the New York Landmarks Conservancy.[4] The roofless Tobacco Warehouse, however, is used as “an outdoor venue for exhibits and entertainment”[5] that is open to the public when not rented for private use.[6]

In 2001, National Parks Service (“NPS”) approved a LWCF grant in the amount of $275,525 for the Cove Area Improvement in EFFP.[7] Unexplored in my previous post is the original boundary map for the LWCF grant, which incorporated all of EFFP including the Empire Stores and Tobacco Warehouse.[8] The map detailed the area covered by the grant, which, like all LWCF projects, included an assurance in perpetuity that the land and real property contained within will not be converted.[9] However, on November 5, 2008, the New York State Office of Parks, Recreation, and Historic Preservation (“OPRHP”) wrote to NPS to request that the park’s boundary map be amended.[10] The OPRHP letter stated: “These former warehouse buildings [the Empire Stores and Tobacco Warehouse] are not suitable for nor used by the public for outdoor recreational opportunities in the park.[11]

NPS replied to OPRHP about one month later, acknowledging that the Empire Stores and Tobacco Warehouse were in the original project boundary map, but allowed the amendment excluding the structures.[12] Furthermore, NPS concluded that “the LWCF Program does not provide financial assistance for existing or proposed indoor recreation facilities and these former warehouses are not suitable for recreational use by the public, the pre-existing warehouses should have been excluded.”[13] NPS also acknowledged that grant maps are final, except for “conversion or significant error.”[14]

Although OPRHP claimed to the federal government that the Tobacco Warehouse was “not suitable for nor used by the public for outdoor recreational opportunities in the park,”[15] thousands of people attended dozens of events at the Tobacco Warehouse prior to late 2008, the date of OPRHP’s request. [16] Those events include music, theater and dance performances, programming for children, design expos and even barbeque contests.  Moreover, the definition of “outdoor” includes, “not enclosed: having no roof.”[17] Clearly, the Tobacco Warehouse has regularly hosted public recreation—that is also outdoor.

Map Amendment To LWCF Grant Was Final Agency Decision Under Administrative Procedures Act

The Administrative Procedures Act (“APA”) governs federal agencies like NPS that propose and establish regulations and take administrative actions.[18] The APA also establishes provisions for judicial review of final federal agency action “for which there is no other adequate remedy in a court . . . subject to judicial review.”[19] The meaning of “agency action” is quite broad, as it “includes the whole of a part of an agency rule, order, license . . . or failure to act.”[20] For purposes of APA, an agency action must be final,[21] “the consummation of the agency’s decision-making process,”[22] and must be one from “which ‘rights or obligations have been determined’ or from which ‘legal consequences will flow.’”[23]

In Bennett v. Spear, the U.S. Supreme Court allowed a citizen suit alleging violations of the Endangered Species Act, in part, based on theory of reviewability under the APA.[24] The Court held that judicial review under the APA was available because a Fish and Wildlife Service statement about the adverse effects to an endangered or threatened species was final agency action.[25] It was uncontested that the statement was the final consummation of the agency’s decision-making.[26] The Court found that the statement affected “legal consequences” as it altered a legal regime and was a binding action, not a mere tentative recommendation.[27] Whereas, in Friends of the Earth v. U.S. Department of the Interior, the court held that an agency action was not final where regulations were temporary.[28] The court there found that the Department of the Interior directed certain parks to determine the status of off-road vehicle use in the interim period before a final decision was made.[29]

In Brooklyn, the map amendment to the LWCF grant, like the initial map, is a final action despite the change.[30] The approval by NPS explains that the agency was reluctant to make map changes because it might indicate that LWCF mapping was “a negotiable process and subject to change at any time.”[31] The map amendment also affects obligations and legal consequences.  Land and Water Conservation Fund grants place strict restrictions in perpetuity on affected land.[32] Lands covered by a LWCF map “shall not be converted to other than public outdoor recreation use but shall be maintained in public outdoor reaction in perpetuity.”[33] Removing this restriction obviously affects rights and obligations.  The entity overseeing Brooklyn Bridge Park would be barred from converting the Tobacco Warehouse if the LWCF restrictions applied.  Removing these restrictions frees the park from federal obligation (although state law still applies). Therefore, the map amendment, like the original map, fulfills the definition of final agency decision.

Map Amendment to LWCF Grant was Based on False Information and Is, Therefore, Arbitrary and Capricious Under Administrative Procedures Act

Under the APA, courts will set aside an agency action when it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[34] The APA also contains a prejudicial or harmless error rule, essentially a margin of error when the outcome is not affected.[35] To determine whether an agency decision is arbitrary and capricious, courts consider “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.”[36] Agency decisions that are based on “entirely false premises or information” are arbitrary and capricious.[37]

In Islander East Pipeline Company, LLC v. Connecticut Department of Environmental Protection, a natural gas company sought review of an order denying an application for Water Quality Certificate to build a cross-sound pipeline.[38] The ruling was found to be arbitrary and capricious because, among other reasons, it did “not . . . explain contradictory evidence” and “neglected to consider important aspects of the problem” presented.[39] In Van Abbema v. Fornell, the Seventh Circuit considered the validity of a permit issued by the United States Army Corps of Engineers to build a coal loading facility on the Mississippi River.[40] The court held that the Army Corps relied on information that was “inaccurate and unverified” and ordered reconsideration of the permit.[41]

The request by OPRHP to amend the LWCF map should be reiterated.  Despite OPRHP’s claim the Tobacco Warehouse was not suitable for public outdoor recreation, there is voluminous evidence to the contrary.  The basis for NPS’s decision was thus based on false information.  Under these circumstances, NPS’s map amendment was arbitrary and capricious and a clear error that affected the decision to exclude the Tobacco Warehouse from the LWCF grant map.[42]

Possible Violations of Federal And State Law For False Statements to NPS

Both federal and New York State law contain provisions for filing false statements with the respective governments.  Under federal law, one who knowingly and willfully “makes any materially false, fictitious, or fraudulent statement or representation” to any branch of federal government is punished by class E felony, imprisonment of up to five years and may incur a fine of up to $250,000.[43] Under New York State law, one who knowingly offers a written instrument containing false information to a public office or public servant ”with knowledge or belief that it will be filed” with a public officer is guilty of a Class A misdemeanor.[44] A state public officer who files a false instrument with the federal government may be prosecuted under federal or state law,[45] but a state prosecution could not proceed after a federal prosecution.[46]

The letter from OPRHP, clearly a statement or writing, likely contains false statements.[47] In light of dozens of events that were open to the public at the Tobacco Warehouse there is no other reasonable conclusion when considering OPRHP’s claim that the Tobacco Warehouse is “not suitable for nor used by the public for outdoor recreational opportunities in the park.”[48]

Criminal statutes in both jurisdictions require the violation to be knowing, i.e., that the person who was making the claim knew that what was said was false.[49] Therefore, mere mistake is a defense to the aforementioned federal or state violations.  Mistake, if offered as a defense against false filing, would be a sad admission for an employee of a state agency whose guiding principle is to “conserve, protect and enhance the natural, ecological, historic, cultural resources [of state parks] . . .  and to provide for the public enjoyment of an access to these resources . . . for future generations.”[50] Failure to investigate the uses of Tobacco Warehouse—if that is indeed the case—would have been reckless.


There exists, dare I say, a veritable warehouse full of evidence that the roofless, four-walled brick structure was host to public outdoor recreation during the time the LWCF grant was awarded in 2001 until the map amendment in late 2008.  The reason OPRHP would claim otherwise, whether intentionally or by mistake for failure to investigate, is a mystery.  Potential violations of criminal law depend on what agents or employees of OPRHP knew at the time of the Tobacco Warehouse map amendment request was made to NPS.

[1] The opinions expressed herein are those of the author as a member of the Albany Government Law Review and not of his employer.

[2] Andrew Stengel, Horsing Around with Conservation: How a Carousel Planned for a Brooklyn Park May Violate the Land and Conservation Fund Act and State Law, Alb. Gov’t L. Rev. Fireplace Blog, (Oct. 31, 2010), https://aglr.wordpress.com/2010/10/31/horsing-around-with-conservation-how-a-carousel-planned-for-a-brooklyn-park-may-violate-the-land-and-conservation-fund-act-and-state-law.

[3] The New York Landmarks Conservancy, Endangered Buildings Initiative, http://www.nylandmarks.org/programs_services/endangered_buildings_initiative/empire_stores (last visited Jan. 11, 2011); Brooklyn Bridge Park Conservancy, Tobacco Warehouse, http://www.brooklynbridgepark.org/go/the-park/the-park-today/tobacco-warehouse (last visited Jan. 11, 2010).

[4] The New York Landmarks Conservancy, supra note 2.

[5] Id.

[6] Empire-Fulton Ferry State Park, New York Magazine, available at http://www.nymag.com/listings/attraction/empire-fulton-ferry-state-park/ (last visited Jan. 11, 2011).

[7] Letter from Jack Howard, Manager Conservation Assistance, National Parks Service, Philadelphia. Support Office, to Kevin Burns, Chief Recreation Grants Div., N.Y. State Office of Parks, Recreation & Historic Preservation (Nov. 30, 2001) (hereinafter Nov. 30 Letter from Jack Howard), available at http://www.scribd.com/doc/38854032/Land-and-Water-Conservation-Fund-Grant-Approval-Empire-Fulton-Ferry-Park-Brooklyn-New-York.

[8] See Letter from Melinda Scott, Chief of Grants, N.Y. State Office of Parks, Recreation & Historic Preservation, to Jean Sokolowoski, Outdoor Recreation Planer, National Parks Service, Northeast Region (Nov. 5, 2008) (hereinafter Nov. 5 Letter from Melinda Scott), available at http://www.scribd.com/doc/41791121/Land-and-Water-Conservation-Fund-Grant-Map-Amendment-Request-Empire-Fulton-Ferry-Park-Brooklyn-New-York; Victor DeSanto, Historic Preservation Program Analyst, N.Y. State Office of Parks, Recreation & Historic Preservation, Revised Empire Fulton Ferry State Park 6-F map (Oct. 31, 2008), available at http://www.scribd.com/doc/41791466/Land-and-Water-Conservation-Fund-Grant-Map-Amendment-Map-Empire-Fulton-Ferry-Park-Brooklyn-New-York.

[9] National Park Service, Dep’t of the Interior, Land & Water Conservation Fund Project Agreement General Provisions 1 (2001), available at http://www.nps.gov/lwcf/forms/lwcf_general_provisions.frm.pdf.

[10] Nov. 5 Letter from Melinda Scott, supra note 8.

[11] Id. (emphasis added).

[12] Letter from Jack Howard, Manager Conservation Assistance, National Parks Service, Philadelphia Support Office, to Melinda Scott, Chief of Grants, N.Y. State Office of Parks, Recreation & Historic Preservation (Dec. 12, 2008) (hereinafter Dec. 12 Letter from Jack Howard), available at http://www.scribd.com/doc/41791373/Land-and-Water-Conservation-Fund-Grant-Map-Amendment-Empire-Fulton-Ferry-Park-Brooklyn-New-York.

[13] Id.

[14] Id.

[15] Nov. 5 Letter from Melinda Scott, supra note 8.

[16] Events held at the Tobacco Warehouse include: the New York Wine and Food Festival Burger Bash, BKLN Designs, Folk Feet: Circle Round Brooklyn, the Brooklyn Hip-Hop Festival, performances of Twelfth Night and Hamlet and the Art + Commerce Festival, to name only a few.  See The GO Brooklyn Burger Team, King of the Grill!: This Man Makes the Borough’s Best Burger, The Brooklyn Paper, Aug. 12, 2009, available at http://www.brooklynpaper.com/stories/32/32/32_32_burger_contest_main.html); Lisa J. Curtis & Adam Rathe, ‘Designs’ Reflect Boro’s Style, The Brooklyn Paper, May 17, 2008,  available at http://www.brooklynpaper.com/stories/31/20/31_20_designs_reflects_boros.html; Joe Pompeo, Pig Out, The Brooklyn Paper,  May 5, 2007, available at http://www.brooklynpaper.com/stories/30/18/30_18pigfest.html; Eleazer Gorenstein, Back to Its Roots: Artists From Brooklyn, Chicago To Play Annual Hip-Hop Festival, The Brooklyn Paper,  June 17, 2006, available at http://www.brooklynpaper.com/stories/29/24/29_24hiphopfest.html ; Paulanne Simmons, Afternoon Delight: Thriftshop Theatre Workshop’s ‘Twelfth Night’ -‘Hamlet’ Double Bill Boasts a Wealth of Talent, The Brooklyn Paper,  Sept. 3, 2005, available at http://www.brooklynpaper.com/stories/28/35/28_35thriftshop.html; Lisa J. Curtis, Photo Fest, The Brooklyn Paper,  Sept. 11, 2004, available at http://www.brooklynpaper.com/stories/27/36/27_36artcommerce.html.

[17] Merriam-Webster’s Collegiate Dictionary 880 (11th ed. 2005).

[18] Administrative Procedures Act of 1946, Pub. L. No. 79-404 (1946); 5 U.S.C. §§ 551–559 (2006).

[19] 5 U.S.C. § 704 (2006); see Friends of the Earth v. U.S. Dep’t of the Interior, 478 F. Supp. 2d 11, 23 (D.D.C. 2007).

[20] 5 U.S.C. § 551(13) (2006).

[21] 5 U.S.C. § 704 (2006).

[22] See Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 482 (2004); see also Friends of the Earth, 478 F. Supp. 2d. at 24–25.

[23] See Bennett v. Spear, 520 U.S. 154, 178 (1997) (quoting Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)).

[24] Id. at 157–60, 166.

[25] Id. at 177–78.

[26] Id. at 178.

[27] Id. (citing Dalton v. Spector, 511 U.S. 462, 469–71 (1994)).

[28] Friends of the Earth v. U.S. Dep’t of the Interior, 478 F. Supp. 2d 11, 24 (D.D.C. 2007).

[29] Id.

[30] See Dec. 12 Letter from Jack Howard, supra note 12.

[31] Id.

[32] National Park Service, Dep’t of the Interior, Land & Water Conservation Fund Project Agreement General Provisions, supra note 9, at 1.

[33] Id. (emphasis added).

[34] 5 U.S.C. § 706(2)(A) (2006).

[35] 5 U.S.C. § 706 (2006).

[36] Islander E. Pipeline Co., LLC v. Conn. Dep’t of Envtl. Prot., 482 F.3d 79, 94 (2d Cir. 2006) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42–43 (1983)).

[37] Van Abbema v. Fornell, 807 F.2d 633, 639 (7th Cir. 1986).

[38] Islander E. Pipeline Co., 482 F.3d at 83.

[39] Id.

[40] Van Abbema, 807 F.2d at 634.

[41] Id. at 642–43.

[42] Although the issue discussed herein concerns an action by the federal government, a public park structure like the Tobacco Warehouse may still be protected from conversion from its current public use due to state common law.  Conversions of park property may violate the public trust doctrine, discussed in greater detail in my prior post, which requires approval by the state legislature.  In Lake George Steam Boat Co. v. Blais, a village was prevented from leasing a portion of the lakefront property used by the public to a private entity for dock facilities even if some public access remained.  Lake George Steam Boat Co. v. Blais, 30 N.Y.2d 48, 50 (1972).

[43] 18 U.S.C. §§ 1001, 3571(b)(3) (2006).  In general, there is a five-year statute of limitations for most crimes, but there are several exceptions for particularly heinous crimes; see id. §§ 3281–3300.

[44] N.Y. Penal Law §175.30 (McKinney 2010).  In general, a two-year statute of limitations applies to misdemeanors.  N.Y. Crim Proc. Law § 30.10(2)(c) (McKinney 2010).  However, prosecutions for offenses by public servants may be commenced at any time during a public servant’s service or within five years after.  Id. §30.10(3)(b); see People v. Volger, 400 N.Y.S.2d 315 (Sup. Ct. Westchester County 1977).

[45] See People v. Caridi, 47 A.D.3d 944, 945–46 (2d Dept. 2008).

[46] See N.Y. Crim. Proc. Law §40.20 (McKinney 2010).

[47] Nov. 5 Letter from Melinda Scott, supra note 8.

[48] Id.

[49] See 18 U.S.C. § 1001 (2006); N.Y. Penal Law §175.30 (McKinney 2010).

[50] N.Y. Parks, Rec. & Hist. Preserv. §3.02 (McKinney 2010).

2 thoughts on “Horsing Around With Conservation Part Two: A Roofless Historical Structure in a Brooklyn Park Hosts Public Outdoor Recreation, But State Parks Claims Otherwise”

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