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Weiss v. Kempthorne

October 6, 2008

JULIE WEISS, ET AL., PLAINTIFFS,
v.
DIRK KEMPTHORNE, SECRETARY OF THE INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

When consent of the National Park Service is necessary to lease 22 acres of a public park to become part of a public golf course, must the Park Service 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? The answer is no. Plaintiffs are residents of Benton Harbor, Michigan who claim that they will be adversely affected by the conversion of part of a public park on the shore of Lake Michigan into three holes of a public golf course. Plaintiffs brought this suit alleging that Defendants*fn1 violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and the Land and Water Conservation Fund Act ("LWCFA"), 16 U.S.C. § 460l-4 et seq., by failing to require an Environmental Impact Statement and inadequately considering alternatives when it approved the conversion of park land to public golf course.*fn2 Plaintiffs seek review of the Park Service's approval of the conversion under the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Plaintiffs assert that their right to be fully informed of and participate in federal actions affecting the environment has been impaired and that their use and enjoyment of the Park will be harmed if the project continues. Plaintiffs seek a temporary restraining order, enjoining all construction activities within the Park. Defendants oppose. As explained below, Plaintiffs' request for a temporary restraining order will be denied.

I. FACTS

Plaintiffs*fn3 all live within three miles of Jean Klock Park. The 73-acre Park is located in Benton Harbor, in southeast Michigan, about 90 miles from Chicago. The Park's natural features include sand dunes running along its entire half-mile stretch parallel to Lake Michigan. John and Carrie Klock, whose daughter Jean died in early childhood, donated the property for the Park to the City of Benton Harbor in 1917. They gave the Park to the City in perpetuity to preserve the dunes and lakeshore and dedicated the Park to "the children."

The National Park Service and the Department of Interior ("Federal Defendants") have an interest in this local Park because in 1977, the federal government provided a $50,000 grant for improvements at the Park. Due to the grant, Federal Defendants acquired a protectable interest in their investment under the LWCFA. This interest gives the Federal Defendants an oversight role with respect to any disposition of the property subject to the grant. See 16 U.S.C. §§ 460l-8(f)(3); 36 C.F.R. §59.3. Accordingly, the Federal Defendants' approval was required before conversion of some of the Park to golf holes and fairways.*fn4

A nonprofit developer, Harbor Shores Community Redevelopment, Inc. ("Harbor Shores"), plans to build three golf fairways and holes in Jean Klock Park. These golf holes are part of a 500 acre project including an18-hole championship signature golf course designed by Jack Nicklaus and a residential and commercial development. According to Plaintiffs, these three holes would "consume virtually all of the [Park's] lengthy dune summit" and encroach on a natural marsh. Compl. ¶ 18. The City and Harbor Shores view the larger development as a project that will revitalize the economy of an impoverished city. The City asserts that Benton Harbor is in great distress - it has a 17% unemployment rate, a 57% illiteracy rate, and more than 42% of its population lives below the poverty line. City's Opp'n at 3.

In order to build three golf holes in part of the Park, the City obtained federal approval to lease 22.11 acres of the Park to Harbor Shores for a term of 35 years, with two 35 year renewal options. The portion of the Park covered by the lease includes a picnic pavilion, an overlook pavilion, and a large parking lot; it does not include the beach or the lake side of the sand dunes. In exchange for the lease, Harbor Shores will grant to the City as "mitigation property" various parcels of land along the Paw Paw River, totaling 38 acres. The City plans to combine the new parcels with existing public trails and to develop a twelve mile public trail system that will include fishing decks, boat launch facilities, picnic facilities, and parking.

The environmental review process began in April 2006 with six public comment sessions held in August 2006. The City presented a proposal to the Park Service, but the Park Service did not approve the initial request. The City revised the proposal and opened it to public comment from April 2 to May 17, 2008. The City held a public hearing during the comment period. The City then added the public comments and submitted the revised proposal to the Michigan Department of Natural Resources. The Michigan DNR recommended approval to the Park Service, and the Park Service approved the lease on July 25, 2008.

Plaintiffs seek a temporary restraining order and preliminary injunction to enjoin "all destruction, conversion, and construction activities which are planned within Jean Klock Park, pending completion of the litigation of the issues raised in the Complaint." Pls.' Mem. at 15. More precisely, Plaintiffs' motion for TRO seeks the following:

1. An injunction barring Defendants, Intervening Defendant [Harbor Shores] and their agents, employees, representatives or other persons or corporations operating in concert with them from implementing or further implementing the National Park Service's final decision to allow conversion and the 105-year leasehold agreement between the City of Benton Harbor and [Harbor Shores], including any and all demolition, destruction of natural features, construction or other ground-disturbing activity of any sort within Jean Klock Park, until such time as Defendants have completed a lawful environmental document that complies with the substantive and procedural requirements of NEPA and LWCFA;

2. An injunction ordering Defendants to prepare a new or revised NEPA document, in compliance with the substantive and procedural requirements of NEPA and or LWCFA;

3. Any other, further relief as the Court deems just and proper.

Pls.' Mot. for TRO at 2-3. Defendants argue that the request for a temporary restraining order should be denied. The Court*fn5 held a hearing on the matter on ...


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