Brooklyn Heights Ass'n, Inc. v. Nat'l Park Serv.

• Citation: 818 F.Supp.2d 564
• Decision Date: 12 July 2011
• Docket Number: No. 11–CV–226 (ENV)(VVP).,11–CV–226 (ENV)(VVP).
• Parties: BROOKLYN HEIGHTS ASSOCIATION, Inc., Jane McGroarty, Fulton Ferry Landing Association, Joan Zimmerman and the New York Landmarks Conservancy, Plaintiffs, v. NATIONAL PARK SERVICE, Kenneth Salazar, Brooklyn Bridge Park Development Corporation, Brooklyn Bridge Park Corporation, and St. Ann's Warehouse, Inc., Defendants.
• Court: U.S. District Court — Eastern District of New York

818 F.Supp.2d 564

BROOKLYN HEIGHTS ASSOCIATION, Inc., Jane McGroarty, Fulton Ferry Landing Association, Joan Zimmerman and the New York Landmarks Conservancy, Plaintiffs,

v.NATIONAL PARK SERVICE, Kenneth Salazar, Brooklyn Bridge Park Development Corporation, Brooklyn Bridge Park Corporation, and St. Ann's Warehouse, Inc., Defendants.

No. 11–CV–226 (ENV)(VVP).

United States District Court, E.D. New York.

July 12, 2011.

James Lincoln Hallowell, Jim Walden, Kimberly Ann Yuhas, Gibson Dunn & Crutcher, New York, NY, for Plaintiffs.

David Michael Eskew, United States Attorneys Office, Brooklyn, NY, Simon D. Wynn, Empire State Development, New York, NY, for Defendants.

MEMORANDUM & ORDER

VITALIANO, District Judge.

Plaintiffs Brooklyn Heights Association, Inc., Jane McGroarty, Fulton Ferry Landing Association, Joan Zimmerman, and the New York Landmarks Conservancy filed this action against defendants National Park Service and United States Secretary of the Interior Kenneth Salazar (collectively, “NPS”), as well as Brooklyn Bridge Park Development Corporation (“BBPDC”) alleging violations of federal regulatory law and state common law. Two additional parties, Brooklyn Bridge Park Corporation (“BBPC”) and St. Ann's Warehouse, Inc. (“St. Ann's”), have been joined as defendants after the Court granted their motions to intervene. Plaintiffs' claims arise under the Land and Water Conservation Fund Act of 1965 (“LWCFA”), 16 U.S.C. § 460 l–8, and its implementing regulations promulgated at 36 C.F.R. Part 59; the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332, and its implementing regulations promulgated at 40 C.F.R. Part 1502; the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551–559, 701–706; § 106 of the National Historic Preservation Act of 1966 (“NHPA”), 16 U.S.C. §§ 470a to 470w–6; and New York's public trust doctrine.

On April 8, 2011, the Court granted plaintiffs' motion for preliminary injunction, setting aside NPS decisions issued December 12, 2008 and February 14, 2011, and enjoining any alteration or construction in connection with any use of the two historic structures at issue in this case, the Tobacco Warehouse and Empire Stores. Brooklyn Heights Ass'n, Inc. v. National Park Service, 777 F.Supp.2d 424 (E.D.N.Y.2011). No state law issues were briefed or ruled upon at the preliminary injunction stage.

Now, plaintiffs, BBPC, and BBPDC have each moved for summary judgment pursuant to Fed.R.Civ.P. 56, and, additionally, BBPC has also moved for dismissal of the public trust doctrine claim for failure to join a required party under Rules 12(b)(7) and 19. On their motion, plaintiffs seek final judgment on both their federal and state claims. BBPC and BBPDC argue in opposition that (a) the Court should abstain from deciding the state law claim, and (b) if deciding the state law claim, should grant summary judgment on it to BBPC and BBPDC. St. Ann's has joined BBPC's motion. NPS opposes plaintiffs' motion for summary judgment on the federal claims.

Upon due consideration, plaintiffs' motion for summary judgment is granted on the LWCFA and APA claims, and, as a result, the NPS decisions are vacated and declared void, and the matter is remanded to NPS for further administrative proceedings. The remaining federal claims are dismissed without prejudice as moot. Moreover, given that all federal claims have been summarily disposed, the Court declines to exercise its supplemental jurisdiction over the state law claim, which is dismissed without prejudice. The reasons for the Court's determinations follow.

I. BACKGROUND

Familiarity with the facts, statutory and regulatory framework of federal grants made pursuant to the Land & Water Conservation Fund (“LWCF”), administrative record, and procedural history of the subject NPS decisions is presumed. See Brooklyn Heights Ass'n, 777 F.Supp.2d at 426–34. Indeed, the parties' factual assertions and legal arguments on the federal claims remain essentially unchanged from those advanced on the preliminary injunction motion, with only one notable exception.¹ BBPC has reasserted that the New York State Office of Parks, Recreation, and Historic Preservation (“OPRHP”) made a mistake when it included the Tobacco Warehouse and Empire Stores on the § 6(f) map submitted in its grant application to NPS in 2001 and submitted again to NPS in the closeout documentation in 2003. In particular, BBPC alleges that two privately owned parcels were also included on the 6(f) map, creating a question of fact that renders summary judgment improper.

However, as BBPC's federal co-defendants correctly argue—and as this Court previously noted in its preliminary injunction decision—judicial review of agency actions is generally limited to the administrative record, absent circumstances not at issue here. Any “after-the-fact rationalization for agency action is disfavored,” Yale–New Haven Hosp. v. Leavitt, 470 F.3d 71, 81 (2d Cir.2006), and thus a court “may not ‘properly affirm an administrative action on grounds different from those considered by the agency.’ ” Forest Watch v. U.S. Forest Serv., 410 F.3d 115, 119 (2d Cir.2005) (quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999)); see also SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943) (“The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.”); Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 284 (D.C.Cir.1981) (“It is well settled that judicial review of agency action is normally confined to the full administrative record before the agency at the time the decision was made ... not some new record completed initially in the reviewing court.”). As a result, the Court will not consider BBPC's proffered evidence on the federal claim, as it lies outside the administrative record.

II. CONTROLLING PRINCIPLES OF LAWA. Summary Judgment

A court must grant summary judgment upon finding that “there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). To decide whether summary judgment is proper, “the court cannot try issues of fact but can only determine whether there are issues of fact to be tried.” Sutera v. Schering Corp., 73 F.3d 13, 15–16 (2d Cir.1995) (quoting Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 244 (2d Cir.1984)). The moving party bears the initial burden to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir.2004). A court must construe all evidence in the light most favorable to the nonmoving party, resolving all ambiguities and inferences in its favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Gibbs–Alfano v. Burton, 281 F.3d 12, 18 (2d Cir.2002).

If the moving party makes a prima facie showing that there are no genuine issues of material fact, the nonmoving party must go beyond the pleadings and set forth “specific facts showing that there is a genuine issue for trial,” Fed.R.Civ.P. 56(e); Davis v. New York, 316 F.3d 93, 100 (2d Cir.2002), without reliance on “conclusory statements, conjecture, or speculation,” Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.1996). Ultimately, the court shall decide “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52, 106 S.Ct. at 2512.

B. Administrative Procedure Act

Under APA review of a final agency action pursuant to 5 U.S.C. §§ 702 and 704, a reviewing court “shall decide all relevant questions of law, interpret ... statutory provisions, and determine the meaning or applicability of the terms of an agency action” and shall “hold unlawful and set aside agency action, findings, and conclusions found to be ... 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,” or “without observance of procedure required by law.” 5 U.S.C. § 706. Pursuant to this deferential standard, the agency action shall not be set aside unless the agency “has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658, 127 S.Ct. 2518, 2529, 168 L.Ed.2d 467 (2007) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983)). The “reviewing court must be certain that an agency has considered all the important aspects of the issue and articulated a satisfactory explanation for its action, including a rational connection between the facts found and the choice made.” Forest Watch, 410 F.3d at 118–19 (2d Cir.2005) (quoting Henley v. FDA, 77 F.3d 616, 620 (2d Cir.1996)). If a court determines that an agency action violated the APA standard, the proper course is for the action, findings, and conclusions to be vacated, then remanded to the agency for further administrative proceedings consistent with the court's opinion. See 5 U.S.C. § 706; Defenders of Wildlife, 551 U.S. at 658, 127 S.Ct. at 2529–30.

Deference is also owed to an agency's construction of the statutes governing it, under the Chevron doctrine. This analysis involves two steps. Initially, “[i]f the intent of Congress is clear, that is the end of the...