March 2010 - Parks & Recreation - 32

LAW REVIEW continued from page 30

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As noted by the federal court, " conveyance of rights in park land (through
lease, easement, or sale) " might meet
" the regulatory definition of a conversion " of the LWCF. In this particular instance, the federal court found the Park
Service approval requirement under
LWCF was indeed " triggered  by the
City's lease of part of the Park to a private entity, Harbor Shores. " On the other hand, contrary to plaintiffs' claim,
the court found the City's plan to convert public park land to private use did
not necessarily trigger the Park Service
approval requirement because " the
planned golf course will be public " and,
therefore, it had not been " converted
to other than public outdoor recreation
uses " within the context of LWCF.
Although the private lease with Harbor Shores had triggered the LWCF approval requirement for any " conversion, "
the court found that plaintiffs had " not
shown a likelihood of success on their
claim that the Park Service acted arbitrarily and capriciously in finding that
the mitigation property was of reasonably equivalent usefulness and location " :
The mitigation property expands
recreational opportunity to include
public trail system, fishing decks,
boat launch facilities, picnic facilities, and parking. The mitigation
parcels are located strategically to
provide public access to the parkland, and are tied together through
the creation of a 12.8 mile public
trail system and foot bridges linking
Jean Klock Park to park sites along
the Paw Paw River, downtown Benton Harbor, and residential areas.

As a result, the federal district court
rejected plaintiffs' LWCF claim that the
Park Service had failed to " assure the
substitution of other recreation properties of at least equal fair market value
and of reasonably equivalent usefulness
and location. "

EIS or EA?
The National Environmental Policy Act
(NEPA) requires federal agencies to prepare a detailed statement, known as the

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Environmental Impact Statement (EIS) for
any major federal actions which significantly affecting the quality of the human
environment. An EIS must consider
the environmental impact of a proposed action, including any adverse
environmental effects which cannot be
avoided should the proposal be implemented. In addition, the EIS must consider alternatives to the proposed action,
including a " no action " alternative. 42
U.S.C. § 4332(2)(C).
In their complaint, plaintiffs contended that the Park Service had violated
NEPA by failing to prepare an EIS. In
order to determine whether an EIS was
warranted or not, the federal court acknowledged that the Park Service was
required to conduct an Environmental Assessment ( " EA " ) under NEPA (40
C.F.R. § 1508.9) " to determine if its approval of the lease was indeed " a major
federal action significantly affecting the
quality of the human environment. " 42
U.S.C. § 4332(2)(C). An EA is a concise
public document which briefly provides
sufficient evidence and analysis for determining whether to prepare a much
more detailed (and costly in time and
money) full environmental impact statement, or alternatively issue a finding of
no significant impact (FONSI).
In this particular instance, the Park
Service conducted an EA and determined that " the lease, which converted
property from general public park use
to public golf course use, did not constitute a major federal action that significantly impacted the environment. "
Accordingly, the Park Service issued a
finding of no significant environmental
impact (FONSI) with regard to the Harbor Shores lease.
Under the circumstances, plaintiffs alleged that the Park Service had erred in
issuing an EA/FONSI, rather than conduct a full blown EIS. In so doing, plaintiffs claimed the Park Service was legally
required to " evaluate the impact on the
full park or on the entire 500 acre development project on adjoining land to
determine whether an environmental
impact statement is needed. "
March 2010 - Parks & Recreation

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