November 2011 - Parks & Recreation - 39

plans were included in the LWCF application regarding the future disposition
of the structures or their intended public
outdoor recreation use. "
As a result, in a " final administrative
determination of the Department of the Interior in this regard, " NPS concluded that
" the inclusion of the Empire Stores and the
Tobacco Warehouse within Section 6(f)
boundary was a correctable mistake, "
because " the State never intended prior
to the grant completion to commit to use
the Tobacco Warehouse solely for public
outdoor recreation. " BHA challenged this
decision in federal district court.

or inconsistent with the regulation. "

Procedure Ignored
According to the federal district court,
there was no dispute that " NPS did not
follow the conversion process laid out in

section 6(f)(3) " of the LWCF in 2008 and
2011 when deciding " the revision of the
6(f)(3) boundary map was the correction
of a mistake, as OPRHP never intended to
include the Tobacco Warehouse and Empire Stores on the map when it applied for

APA Review
The issue before the federal district
court was whether any alteration or construction in connection with the Tobacco
Warehouse and Empire Stores triggered
Section 6(f)(3) of the LWCFA. See: Brooklyn Heights Association Inc. v. National
Park Service, No. 11-CV-226, 2011 U.S.
Dist. LEXIS 38658, 2011 WL 1356758
(E.D.N.Y. Apr. 8, 2011).
Pursuant to the Administrative Procedure Act (APA), in pertinent part, a reviewing federal court shall " hold unlawful
and set aside agency action found to be
not in accordance with law, " or " without
observance of procedure required by
law. " 5 U.S.C. § 706. The APA standard of
judicial review is generally deferential to
agency determinations, particularly in areas of agency expertise. In so doing, however, 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.
Further, in this particular instance,
the court would determine whether the
agency's action was based on a permissible construction of the LWCF statute.
In addition, the court would determine
whether the NPS adhered to its own regulations. In so doing, the court acknowledged " an agency's interpretation of its
own regulations is entitled to substantial
deference, unless it is plainly erroneous

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November 2011 - Parks & Recreation

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