Federal Judge Rebukes City, State, NPS; Orders return of the Tobacco Warehouse to Protected Public Parkland

We are very pleased to tell you that the Federal Court has ruled fully in our favor. Stating that the evidence “is so one-sided that (plaintiffs) must prevail as a matter of law,”  United States District Judge Eric N. Vitaliano handed FFLA, the Brooklyn Heights Association , the New York Landmarks Conservancy and the Preservation League of New York  an historic victory when he ruled late Tuesday that the Tobacco Warehouse and the Empire Stores were illegally removed from federally protected parkland in Brooklyn Bridge Park as part of a private development scheme. He ordered their immediate return to public parkland.

In his decision reaffirming his earlier preliminary injunction, Judge Vitaliano issued a stinging rebuke to the National Park Service (NPS) for breaching the public trust, violating federal law, and failing to carry out its duties: “…the federal government [must] keep its promise  . . .  that parkland developed or improved with federal taxpayers’ money will remain available for public use, or at the very least, will be replaced with substitute parkland of equal or greater value.  That promise must be kept.”

“Everyone must follow the law. Everyone. We are grateful the Court applied the law, but it is a shame court action was necessary,” said Jim Walden, the Gibson Dunn & Crutcher  attorney who litigated the case pro bono on our behalf.  We couldn’t agree more. In conjunction with our fellow plaintiffs, we used every possible public means to avoid a suit, but the government agencies refused to respond.

As a reminder, the lawsuit was filed  because the National Park Service capitulated to pressure from the City by allowing the Tobacco Warehouse and Empire Stores to be secretly removed from the map of a federally protected park.  The City had planned to turn over both structures to private developers.

The defendants in the case (National Park Service, US Secretary of the Interior Kenneth Salazar, Brooklyn Bridge Park Development Corporation, Brooklyn Bridge Park Corporation and St. Ann’s Warehouse, Inc.) tried to claim that the Tobacco Warehouse and the Empire Stores were never meant to be included as part of the federally protected parkland, and that they were placed on the park map by “mistake.”

However, Judge Vitaliano rejected that assertion and ruled that, “[o]verwhelmingly, the evidence points to only one finding:  the absence of any mistake by [State Parks] in the inclusion of the Tobacco Warehouse and Empire Stores on the [park] maps submitted in 2001 and 2003.”Indeed, he continued, the record established an “obvious purposefulness of the inclusion of the structures”and that“the planning for the eventual Brooklyn Bridge Park . . . yields the clear and obvious conclusion that [State Parks] fully intended to include the structures on the [park] map and fully understood the consequences of that action under applicable federal law.”

Further, Judge Vitaliano underscored that  “[i]t is crystal clear that . . . NPS acted outside of its legal authority” and its interpretation was “flatly impermissible and directly contrary to established law.” This is a victory which resonates elsewhere by protecting federally financed public parkland and historic resources from retroactive political maneuvering, or back channel attempts to privatize that which belongs fully to the public.  We hope that this will set a judicial precedent to ensure that the government does indeed protect public parkland  in accordance with the law in the future, here and elsewhere in the country.

What does this mean for the Tobacco Warehouse?  As of now, it–and the Empire Stores–have been returned to federally protected parkland.  If either structure is to be developed privately, each will need to undergo a prescribed process called conversion (you see it referred to in the Judge’s opinion below) which has specific and fairly strict criterion that must be met, and were ignored when these buildings were secretly removed from the park map.

It is our hope–and the hope of our fellow plaintiffs–that the Tobacco Warehouse will once again open to regular public programming, free to all, as a flexible, multi-purpose outdoor space accommodating a wide variety of uses, and a glorious spot from which to contemplate the majesty of the Brooklyn Bridge and the Manhattan skyline.

The Judge’s decision can be viewed here: 11-07-12 Decision and order

While we have won a resounding victory in Federal Court, the case now proceeds to State Court, where arguments were to begin Wednesday, July 20th.

UPDATE: All sides were present in NY State Court on July 20th , and our case was ready to be heard;  however the Judge, Justice Vaughan, decided to read all the papers and make a ruling without hearing oral arguments.  We and our fellow plaintiffs were then provided  a “control date” of Oct. 19th.  This means that anytime on or before Oct 19th, Justice Vaughan will decide on 1)the motions to dismiss or 2) whether he needs to hear further oral arguments.  As always, we will keep you posted should there be any further developments.