Historic Victory for Plaintiffs in Tobacco Warehouse Case

Federal Court Rebukes City, State, National Park Service for Illegally Taking Tobacco Warehouse from Brooklyn Bridge Park for Private Development; Judge Says Violation of Law Obvious, Returns Tobacco Warehouse to Protected Public Parkland in Ruling with National Implications

BROOKLYN, N.Y., July 13, 2011 /PRNewswire-USNewswire/ -- Saying that the evidence "is so one-sided that (plaintiffs) must prevail as a matter of law," United States District Judge Eric N. Vitaliano handed the Brooklyn Heights Association, the Fulton Ferry Landing Association, the New York Landmarks Conservancy and the Preservation League of New York State a historic victory when he ruled late yesterday 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, Judge Vitaliano issued a stinging rebuke to the National Park Service 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, an attorney with Gibson Dunn & Crutcher who litigated the case pro bono on behalf of the plaintiffs.  

"The Brooklyn Heights Association is pleased with Judge Vitaliano's straightforward decision that underscores the promise by government to protect parkland for the public. This case proves that process and procedure are essential and are there to protect the public. Together with the other plaintiffs, we are thankful that the court understood that," said Jane McGroarty, President of the Brooklyn Heights Association.

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 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."

"The Fulton Ferry Landing Association is pleased that Judge Vitaliano has decided '[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 from retroactive political maneuvering to privatize that which belongs fully to the public," said Joan Zimmerman, President of the Fulton Ferry Landing Association.

Peg Breen, President of the Landmarks Conservancy, remarked that the decision has major national implications. "The decision is important to the entire country, not just to New York. Those fighting to preserve and protect parks and historic buildings for the public everywhere will use this decision to make sure that all levels of government follow the law, without exception," she said.

The decision has implications for the State of New York as well. "The Preservation League of New York State welcomes this clear and assertive decision because it reasserts the federal government's fundamental responsibility to protect public parkland and the historic resources from inappropriate privatization," said Jay DiLorenzo, President of the Preservation League.  "This decision is far-reaching in impact, reconfirming for other parks and historic resources receiving federal funding in New York State that a full and public conversion process must be followed."

"Now that the Court has emphatically ruled in favor of the public, we look forward to enjoying more outdoor cultural and other events at the Tobacco Warehouse for a long time to come," added Judy Stanton, Executive Director of the Brooklyn Heights Association.

In addition to Jim Walden, the Gibson Dunn & Crutcher legal team included attorneys James Hallowell, Richard Falek, Adam Cohen, Matthew Menendez, Kimberly Yuhas, Adam Jantzi, Lloyd Kim, Vikram Kumar, and Yara Mansour.

SOURCE Gibson, Dunn & Crutcher