Weiss v. Kempthorne
| Decision Date | 15 January 2010 |
| Docket Number | File No. 1:08-CV-1031. |
| Citation | 683 F. Supp.2d 549 |
| Parties | Julie WEISS, et al., Plaintiffs, v. Dirk KEMPTHORNE, Secretary, U.S. Department of the Interior, et al., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Terry J. Lodge, Law Office Of Terry Jonathan Lodge, Toledo, OH, for Plaintiffs.
Joseph Hosu Kim, Matthew R. Oakes, U.S. Department of Justice, Enrd-Nrs, Peter Richard Steenland, Jr., Sidley, Austin, LLP, Washington, DC, Ryan D. Cobb, U.S. Attorney, Grand Rapids, MI, Brad H. Sysol, Pamela Chapman Enslen, Miller, Canfield, Paddock & Stone, PLC, Kalamazoo, MI, for Defendants.
Before the Court is a motion for summary judgment filed by Plaintiffs (Dkt. No. 105), a motion to dismiss and/or for summary judgment filed by Defendant City of Benton Harbor (Dkt. No. 107), a motion for summary judgment filed by the United States1 (Dkt. No. 108), and a motion for summary judgment filed by Defendant Harbor Shores Community Redevelopment, Inc. (Dkt. No. 111). The Court visited Jean Klock Park on June 23, 2009, with the consent of the parties, and heard oral argument on the pending motions on August 28, 2009. The parties filed supplemental briefs on September 4, 2009. (Dkt. Nos. 133-137.)
Plaintiffs' action centers on the development of a golf course in Benton Harbor ("City"), a city in southwest Michigan. Part of the planned course extends into Jean Klock Park ("Park"), a 74-acre public park that sits adjacent to Lake Michigan. Plaintiffs2 are Michigan residents living in or near Benton Harbor. Plaintiffs allege that their use and enjoyment of the Park is threatened by the golf-course development.
Following civil unrest in Benton Harbor in 2003, the governor of Michigan appointed a task force to focus on improving the quality of life in the city. (DOI R. at 153,3 Benton Harbor, A Plan for Positive Change: Final Report of the Governor's Benton Harbor Task Force, at x.) The task force issued a report in October of 2003 recommending that the City foster economic development by "taking advantage of its unique natural features to develop a comprehensive tourism plan for the area." (Id. at xiii.) The task force noted that the City's parkland located along Lake Michigan, which it estimated is visited by less than 700 people annually, is "woefully unappreciated and underutilized by residents within the community." (Id. at 15.) The task force also noted the growth of tourism in southwestern Michigan, and it recommended that the City create "tourism destination development" projects to draw tourists to the city. (Id. at 16.) One project recommended by the task force was a "golf course and first tee program that affords Benton Harbor residents preferred opportunities in conjunction with the influx of tourism." (Id.)
Defendant Harbor Shores Community Redevelopment, Inc. ("Harbor Shores"), a non-profit umbrella organization, adopted the golf-course proposal. Harbor Shores is overseeing development of the golf course as the catalyst for a 500-acre commercial and residential development project. To attract sufficient interest and investment and to ensure the long-term viability of the project, Harbor Shores and the City determined that the course should be a high-caliber course that would stand out from other courses in the area. The planning team determined that a Jack Nicklaus "Signature" golf course would best fulfill this criteria. (DOI R. at 2762, Summary Document For Public Review ("NPS Summary Document") 4.) Such courses require "dramatic elements" to warrant the "Signature" designation. (Id. at 4-5.) The dramatic element identified for the Benton Harbor course is the view of Lake Michigan from the Park. (Id.) Harbor Shores's plans call for three of the eighteen holes of the golf course to be located within the Park, occupying 22.11 acres of the 74-acre Park (Id. at 2.).
The Park's natural features include sand dunes running along its entire half-mile stretch parallel to Lake Michigan. The Park was deeded to the City in 1917. In 1977, the City received funding pursuant to the Land & Water Conservation Fund Act (LWCFA), 16 U.S.C. § 460l-8, to construct a bathhouse and make other improvements to the Park. (DOI R. at 2762, NPS Summary Document 1.) The Park is subject to a consent judgment and injunction from 2004 such that the City and its successors may only use the Park for "bathing beach, park purposes, or other public purposes related to bathing beach or park use...." (DOI R. at 22, Consent J. ¶ 3.)
In order to allow the construction and operation of three holes of the golf course inside the Park, the City decided to lease a portion of the Park to Harbor Shores. (DOI R. at 2021, Lease between City and Harbor Shores ("Lease").) The portion of the Park subject to the Lease includes a picnic pavilion, part of an access road known as Jean Drive, a large parking lot east of the dunes, and a portion of the dunes on the land side; it does not include the beach or any property on the lake side of the sand dunes. (DOI R. at 2762, NPS Summary Document 2-3.)
Under the terms of the Lease, Harbor Shores is required to make the golf course available for the use and benefit of the public and may not use the leased premises for any other use without the City's prior written consent. (DOI R. at 2021, Lease §§ 2.04, 2.05.) All net operating income from the course, after costs and expenses, will be paid, in part, to the City and, in part, to a community benefits program established for the benefit of local residents. (Lease § 2.03.) Harbor Shores and the City also entered into a "Park Improvements and Maintenance Agreement" pursuant to which Harbor Shores has agreed to make various improvements to the Park, including a new park entrance, an updated bath house, and new facilities. (DOI R. at 2069, Park Improvement and Maintenance Agreement.) Harbor Shores will replace the old parking lot that is separated from the beach by the dunes and remove the access road that cuts through the dunes to the beach. In place of the old parking lot and access road, Harbor Shores will construct a new beach access road and a new parking lot running parallel to the beach on the lake side of the dunes. Harbor Shores has also agreed to convey to the City various parcels of land along the Paw Paw and St. Joseph rivers, totaling over 38 acres, as "mitigation" for the property taken for the Conversion. (DOI R. at 2762, NPS Summary Document 2.) Finally, Harbor Shores will create a 12.8-mile trail system linking the Park and the various mitigation parcels. (Id. at 4.)
Plaintiffs originally filed their action in the United States district court for the District of Columbia. On October 6, 2008, Judge Rosemary Collyer denied Plaintiffs' motion for a temporary restraining order, determining that Plaintiffs had not shown that they were likely to prevail on the merits of their claims. Weiss v. Kempthorne, 580 F.Supp.2d 184, 190-91 (D.D.C. 2008). The action was transferred to this Court on November 3, 2008. Plaintiffs filed an amended complaint on December 2, 2008. (Dkt. No. 60.) According to their amended complaint, Plaintiffs assert the following claims: (1) failure to prepare an environmental impact statement as required by the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq.; (2) failure to consider practical alternatives in violation of NEPA and LWCFA regulations; (3) improper conversion of land in violation of the LWCFA based on use of converted property for professional sports; (4) insufficient appraisal of conversion property in violation of LWCFA regulations at 36 C.F.R. § 59.3(b)(2); (5) improper mitigation of conversion property in violation of LWCFA regulations at 36 C.F.R. § 59.3(b) (3); (6) improper conversion of property in violation of Michigan's Statewide Comprehensive Outdoor Recreation Plan (SCORP), per LWCFA regulations at 36 C.F.R. § 59.3(b)(9); (7) improper conversion creating non-viable parkland in violation of LWCFA regulations at 36 C.F.R. § 59.3(b)(5); (8) violation of the APA; (9) violation of a state-law requirement to obtain two appraisals; (10) lack of approval of the Conversion by the Michigan Natural Resources Trust Fund; (11) failure to comply with NEPA and Section 404 the Clean Water Act, 33 U.S.C. § 1344, in approval of the Corps Permit, including failure to properly review the Park's eligibility under the National Historic Preservation Act (NHPA), 16 U.S.C. § 470 et seq.
The APA permits a party to obtain judicial review of an agency action. 5 U.S.C. § 702. There are two agency actions at issue in this case: (1) approval on July 25, 2008, by the National Park Service ("NPS") of the conversion of 22.11 acres of park property regulated by the LWCFA ("Conversion") (DOI R. at 2778; DOI R. at 2762, NPS Summary Document); and, (2) approval on August 29, 2008, by the Department of the Army Corps of Engineers ("Corps") of a permit pursuant to Section 404 of the Clean Water Act (CWA), 33 U.S.C. § 1344, and Section 10 of the River and Harbors Act, 33 U.S.C. § 403 ("Corps Permit") (CORPS R. at 3839).
Defendants determined that the transfer of rights in Park property via the Lease would constitute a "conversion" of property under the LWCFA and would require the approval of NPS. See 16 U.S.C. § 460l-8(f)(3). The City presented its initial conversion proposal to NPS in June of 2007, but NPS denied this request based on its concerns about the scope of control of the Park conveyed by the terms of the Lease, the apparent lack of a sufficient public-comment period for review of the conversion, and the apparent inadequacy of the recreational viability of the proposed mitigation parcels. (DOI R. at 883, 10/16/2007 letter from NPS to MDNR 1-5.) The City revised the proposal...
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...The NPS's authority does not extend over land outside its jurisdiction. See, e.g., 16 U.S.C. § 1c (2006); Weiss v. Kempthorne, 683 F. Supp. 2d 549, 560 (W.D. Mich. 2010), aff'd in part and vacated in part, 459 F. App'x 497 (6th Cir. 2012) (citing Stewart v. Potts, 996 F. Supp. 668, 681-83 (......