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The Land and Water Conservation Fund (LWCF) is intended to create and maintain a nationwide legacy of high-quality recreation areas and facilities and to stimulate non-federal investments in the protection and maintenance of recreation resources across the United States. The State Side of the LWCF has provided 50/50 matching grants to states and local governments for the acquisition and development of public outdoor recreation areas and facilities. Since its inception in 1965, the LWCF State Grants program has funded $3.9 billion projects in every county in the country totaling 41,999 projects.
Section 6(f)(3) of the LWCF Act is the cornerstone of federal-compliance efforts to ensure that the federal investments in LWCF assistance are being maintained in public outdoor recreation use. The regulation governing “Conversion Requirements” of Section 6(f)(3) of the Act assures that once an area has been funded with LWCF assistance, it is continually maintained in public recreation use unless the National Park Service (NPS) approves substitution property of reasonably equivalent usefulness and location and of at least equal fair market value. 36 CFR 59.3.
As a result, as described herein, Section 6(f)(3) can provide informed local groups and citizen activists with a significant legal tool to ensure LWCF-funded park resources are preserved. In so doing, private citizens can effectively challenge any conversion approved by NPS when a local government entity attempts to divert LWCF-funded park and recreation resources to another public purpose.
Park-to-School Renovations
In the case of Save the Park & Build the School v. National Park Service, 2020 U.S. Dist. LEXIS 131439 (U.S. Dist. Ct S.D. Calif., 7/24/2020), school renovations encroached on George Berkich Park, a park in the City of Encinitas, California, owned by Defendant Cardiff School District. The renovations intruded on 9 percent to 14 percent of the land protected by the Section 6(f)(3) boundary of the park, replacing “grassy parkland and walking path with school buildings, paved parking, a pickup and drop-off area, and biofiltration basins.” Plaintiff Save the Park is a nonprofit organization comprised of people who live near the park and use it for recreation.
Save the Park sued the District, seeking a preliminary injunction to block any further construction or demolition within the boundaries of their local park. In so doing, Save the Park alleged an earlier approval of the renovation project by NPS violated the LWCF.
In 1993, the District and the City of Encinitas received renovation funding for the park under the LWCF. As noted by the federal district court: “That funding came with a string attached, which provides the federal hook in this case.” Specifically, Section 6(f)(3) of the LWCF required the park to be retained for public outdoor recreation unless the Secretary of the Interior finds a proper substitution of similar recreation properties. 54 U.S.C. § 200305(f)(3).
Save the Park initially sued the District in state court, contending that the District began renovating the park without necessary approval from NPS. In November 2019, the state court granted a preliminary injunction putting a stop to construction in the 6(f)(3) boundary of the park.
In February 2020, the parties settled the state court action and the state court dismissed the case. Under the settlement agreement, the District agreed not to convert parkland without first obtaining NPS approval. The agreement included a general waiver of claims, but Save the Park reserved the right to “use any ruling issued and any evidence obtained in the state court litigation to challenge any action taken by NPS in connection with the project.” For its part, the District reserved the right to “challenge the meaning, effect, or significance of any rulings used by Save the Park in such proceedings.”
On April 24, 2020, NPS approved conversion of the park and construction resumed. Before filing this federal lawsuit, Save the Park first sought to have NPS reconsider its approval. When it became clear that NPS’s reconsideration would not occur quickly, on June 12, 2020, Save the Park filed a claim in federal district court to halt construction activities in the now-demolished park. In addition to the School District, Save the Park named as defendants: NPS, Secretary of the Interior David Bernhardt, Director of NPS David Vela and Director of the California Department of Parks and Recreation Lisa Mangat.
In its lawsuit in federal district court, Save the Park was seeking a preliminary injunction to prevent the District from engaging in further construction and renovation activities within the LWCF-funded boundary of George Berkich Park, and from denying the public access to the park for outdoor recreational use. Save the Park maintained the requested relief of a court-issued injunction was warranted because NPS’s consent to the conversion was not “properly-granted nor fully reasoned.”
Preliminary Injunction Requirements
As noted by the federal district court, to prevail on its request for a preliminary injunction to temporarily halt the District’s renovation project, Plaintiff Save the Park would have to show all of the following:
(1) a likelihood plaintiff will succeed at trial in proving the merits of the claim; (2) a likelihood of irreparable harm to the plaintiff in the absence of preliminary injunction relief; (3) the balance of the equities tips in favor of the plaintiff; (4) an injunction in favor of plaintiff is in the public interest.
Likelihood of Success on the Merits
Save the Park argued the federal district court should set aside NPS’s “hasty” consent to the project in an LWCF-funded park because NPS approval was “arbitrary, capricious, and an abuse of discretion” in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq.
As cited by the federal district court, the Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq., required a federal court to set aside an agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,” “without observance of procedure required by law,” or “unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.” 5 U.S.C. § 706(2).
Without making a final determination of this issue, based on the plaintiff’s complaint at this preliminary stage of the proceedings, the federal district court found Save the Park was indeed likely to be able to show that NPS’s initial “hasty approval” of the project violated the APA.
Section 6(F)(3)
As described above, the court acknowledged the implementing regulations of Section 6(f)(3) of LWCF “assures that once an area has been funded with LWCF assistance, it is continually maintained in public recreation use unless NPS approves substitution property of reasonably equivalent usefulness and location and of at least equal fair market value.” 36 CFR § 59.3(a). Further, the court noted that these LWCF-implementing regulations “preclude NPS from considering a conversion application unless, among other requirements,” the following conditions are met:
(1) The applicant has proposed replacement property that meets recreation needs “at least like in magnitude and impact to the user community as the converted site,” 36 C.F.R. § 59.3(b)(3)(i);
(2) The proposed replacement property “has not been dedicated or managed for recreational purposes while in public ownership,” 36 C.F.R. § 59.3(b)(4)(ii); and
(3) “The guidelines for environmental evaluation have been satisfactorily completed and considered by NPS,” 36 C.F.R. § 59.3(b)(7).
Comparable Replacement Property
In the opinion of the federal district court, Save the Park likely would be able to succeed in showing that NPS failed to properly heed these regulations. Specifically, the court found Save the Park was “likely to succeed in showing that NPS failed to properly consider whether the replacement property the District offered meets the criteria in the NPS regulations.” In so doing, the court found the District’s proposed replacement property failed to comply with the applicable LWCF regulations:
The District’s proposed replacement property consists neither of land that “has not been dedicated or managed for recreational purposes while in public ownership” or of land that “meets recreation needs at least like in magnitude and impact to the user community as the converted site.” 36 C.F.R. § 59.3(b)(4)(ii); 36 C.F.R. § 59.3(b)(3)(i).
Specifically, the court noted: “The replacement property consists partially of hardcourts that the District and the City of Encinitas agreed, via a 1994 amendment to a Joint Use Agreement, would be ‘available for general public recreational use in perpetuity.’” Accordingly, citing the plain language of 36 C.F.R. § 59.3(b)(4)(ii), the court found the hardcourt property already had “been dedicated or managed for recreational purposes while in public ownership,” and, thus, “that past designation renders it ineligible for use as replacement property.”
In reaching this determination, the court noted, in December 2019, the District had sought to revoke the 1994 public recreation designation of the hardcourt property “after it became clear that it needed more land to support the conversion” request to the NPS. The District’s action was apparently prompted by NPS’s rejection of a prior conversion proposal based, in part, on NPS’s concerns about “recreational utility” of that earlier proposal.
The federal district court, however, found the District’s revocation of a public recreation designation “can’t erase the past” fact that “the hardcourts had previously been dedicated for recreational use while under public ownership.” In the opinion of the court: “The District’s apparent attempt to circumvent the regulation by closing recreational space to the public so it could immediately offer it up again as replacement property was ineffective and ultimately futile.”
Further, the court found: “Another section of the purported replacement property — comprising nearly five-eighths of the total asserted area — is a parking lot.” Citing the applicable LWCF regulations, the court found the District, as an applicant to propose to convert property, must “evaluate that property in order to determine what recreation needs” the replacement property fulfills. 36 C.F.R. 59.3(b)(3)(i):
While the replacement property and the replaced property need not provide identical recreation experiences,” 36 C.F.R. 59.3(b)(3), the applicant must “evaluate proposed replacement property in a similar manner to determine if it will meet recreation needs which are at least like in magnitude and impact as the converted site.”
In this particular instance, the federal district court found “the proposed parking lot will not replace another parking lot, other support facilities, or any other property that fulfills needs similar to those a new parking lot will fulfill.” Instead, the court found the parking lot “replaces grassy parkland.” Despite any “advantages of having space to park adjacent to the parkland,” under the applicable LWCF regulation, the court found “a parking lot simply does not ‘meet recreation needs’ that are ‘like in magnitude and impact’ to the recreational purposes served by grassy parkland.” 36 C.F.R. 59.3(b)(3)(i).
Accordingly, the federal district court concluded: “Save the Park is likely to succeed on the merits of its claim that NPS approval of the proposed replacement property was arbitrary and inconsistent with the LWCF regulations.”
Consideration of Environmental Guidelines
As noted by the federal district court, LWCF regulations also required the District and NPS to ensure “[t]he guidelines for environmental evaluation have been satisfactorily completed and considered.” 36 C.F.R. § 59.3(b)(7). In this particular instance, the California Environmental Quality Act (CEQA) required an Environmental Impact Report (EIR) if there was substantial evidence that a project may have a significant effect on the environment. The EIR would usually include a project description, a map and probable environmental effects.
In this case, Save the Park claimed NPS could not rely on the District’s EIR. Specifically, Save the Park argued: “NPS’s reliance on the EIR was ill-considered in the face of a state court order...that vacated parts of the EIR and repudiated the District’s prior approval of it.” In response, the District argued that “the state litigation settlement bars Save the Park from arguing that the EIR violated CEQA.”
The federal district court, however, noted: “The settlement agreement’s general release of claims is limited by a specific carve-out of challenges or any action taken by NPS in connection with the Project.” As characterized by the court, “Save the Park’s contention that NPS relied on faulty environmental impact data poses such a challenge.” Accordingly, since the state court had already repudiated the District’s approval of the EIR, the federal district court found Save the Park was “likely to succeed on its claim that NPS could not rely on the District’s EIR.”
Likelihood of Irreparable Harm
As described above, the second of the required four points to prevail on a request for a preliminary injunction also would require Save the Park to show it would suffer “a likelihood of irreparable harm” if the federal district court failed to issue a preliminary injunction in this case. As a general rule, an injunction to prevent any further harm would be appropriate when an award of money damages is an inadequate legal remedy. In this particular instance, the federal district court noted: “Both sides appear to agree that injury resulting from violation of the LWCF are environmental in nature and, as such, typically can’t be adequately remedied by money damages.”
The District, however, disputed “whether issuing a preliminary injunction at this point” would “accomplish its objective — preventing further harm” because “the harm had already occurred.” Specifically, since the “entirety of George Berkich Park” was “already demolished,” the District claimed “an injunction will simply render the land unusable for any recreational purposes whatsoever.”
In the opinion of the court, the District’s argument erroneously assumed “the District or the City of Encinitas will not rebuild the Park — and that they cannot be required to do so” by court order. In fact, the court found “the project is neither complete nor nearly so” and Save the Park was seeking a court order to “require the Park be rebuilt.” The court noted:
Although the parkland has been demolished, no structures have been built in the old 6(f)(3) boundary. Save the Park’s claims are not mooted [i.e., no judicial relief available] by the demolition, since plaintiffs ultimately seek rebuilding of the demolished parkland.
Further, in the absence of a preliminary injunction, the court found: “Permitting further construction at this point within the 6(f)(3) boundary would render any later amelioration of the park more difficult and expensive.” As noted by the federal district court, judicial review under the APA, provides courts with “broad powers to order mandatory affirmative relief,” which, in this case, could involve a court order to rebuild the park.
Accordingly, the court held Save the Park had effectively shown it would suffer irreparable harm in the absence of preliminary relief.”
Balance of Equities
As described above, the third of the required four points to prevail on a request for a preliminary injunction would require Save the Park to show “the balance of the equities tips in favor” of issuing an injunction to temporarily halt the District’s renovation project. In balancing the environmental and economic concerns in this case, the federal district court found “the potential environmental harm the LWCF is designed to protect” outweighed “the economic harm the District will suffer from constructions delays”:
[E]conomic harm does not generally outweigh the environmental harms protected by LWCF. As a general rule, the public interest in preserving nature and avoiding irreparable environmental injury outweighs economic concerns in cases where plaintiffs are likely to succeed on the merits of their underlying claim.
Accordingly, the federal district court held: “Save the Park is likely to succeed on the merits, the prospect of environmental harm prevails and tips the balancing process in favor of issuance of an injunction.”
Alleged Lack of Diligence
The District also opposed Save the Park’s injunction request on the basis that Save the Park was not diligent in seeking relief from the federal district court. In so doing, the District relied on the general proposition that “parties seeking relief from an administrative decision concerning public construction projects must act ‘with haste and dispatch.’” According to the District, construction of the project restarted in late April 2020, but Save the Park didn’t file its lawsuit until June 12, 2020, and did not seek a temporary restraining order or preliminary injunction until June 26, 2020.
The federal district court, however, acknowledged that “seeking injunctive relief is not the only means of diligently addressing a matter.” On the contrary, in this particular instance, the court found a prompt challenge on the part of Save the Park could take the form of asking NPS to reconsider its conversion approval. In the opinion of the court, Save the Park had acted “with haste and dispatch” by promptly challenging NPS’s approval of the District’s school renovation project:
Within a month of NPS’s issuing its initial approval, Save the Park prepared and served on NPS a voluminous petition requesting reconsideration. Although there was delay following Save the Park’s submission, it was occasioned by NPS’s assurances that it would consider the submitted material and issue “updates” within two weeks. All the while, counsel for Save the Park continued to press NPS to move quickly. When it became clear that NPS’s updates would not take the form of a decision — and still less than two months after NPS issued its initial approval — Save the Park filed this action.
Accordingly, the federal district court found: “Save the Park’s early and continuous communication with NPS seeking reconsideration of the agency’s decision, along with its prompt filing of this lawsuit once it realized that NPS wouldn’t reach a quick decision, sufficiently establish Save the Park’s diligence in challenging NPS’s approval.” Under these circumstances, the court, therefore, held the “balance of the equities favors Save the Park.”
Temporary Injunction in the Public Interest
As listed above, the fourth of the required four points to prevail on a request for a preliminary injunction would require Save the Park to show “an injunction in favor of plaintiff is in the public interest.” In this particular instance, the federal district court found Save the Park had succeeded in showing “the public interest favors injunctive relief — if only temporarily.”
In so doing, the court found “Save the Park rightly notes that the public has an interest in ensuring that public agencies comply with their own regulations.” On the other hand, the court acknowledged, “this interest would normally be outweighed by the competing interest in ensuring that school is open and ready for use by students when the school year begins.” However, in light of present circumstances, the court recognized the District’s schools were not scheduled to open on time in 2020 due to state health department restrictions in response to the coronavirus (COVID-19) pandemic. In the opinion of the court, it was, therefore, unlikely that “the District will need to be ready to accommodate students in classrooms in September — or for that matter in the immediate future.” Further, the court found the “relatively brief time to wait for NPS to reach a decision” would support the “issuance of time-limited injunctive relief” requested by Save the Park:
NPS’s counsel estimated at the hearing that the agency may complete its reconsideration around the end of August. A reversal or modification of NPS’s decision would substantially alter the likely outcome of this lawsuit, potentially clarifying whether an injunction for a longer term would be appropriate...
Considering the slim likelihood that schools in San Diego County will be open for in-person learning in the fall and the high likelihood that further NPS action will clarify the issues in the next several weeks, the Court finds that the public interest favors issuance of an injunction, if only temporarily.
Conclusion
Having found Save the Park had satisfied the four requirements for a preliminary injunction, the federal district court ordered the District to be “enjoined from engaging in any construction or demolition within the original 6(f)(3) boundary of George Berkich Park.” The court’s order allowed for the following exception: “[C]onstruction of the biofiltration basins and turf may proceed consistent with the terms of the settlement agreement between Save the Park and the District.” Further, the preliminary injunction was scheduled to “expire at 11:59 p.m. on August 31, 2020, unless renewed and may expire earlier if so ordered by the Court.” In so doing, the federal district court renewed “its request for NPS’s prompt reconsideration”:
If the National Park Service (NPS) decides, one way or the other, on reconsideration of the approval of construction prior to August 31, 2020, Save the Park and the District must promptly inform the Court. During the hearing, the Court impressed upon NPS’s counsel the urgency of NPS’s reconsideration and urged NPS’s counsel to relay the Court’s message to the agency.
Having succeeded in obtaining a preliminary injunction to temporarily halt the District’s school renovation project, Save the Park increased the likelihood that a more thorough NPS reconsideration might ensure a more favorable outcome for Save the Park, in which their park is either rebuilt and/or any replacement property will have equal market and recreational value as required by Section 6(f)(3) for any NPS-approved conversion of an LWCF-funded park and recreation resource.
See also: “Economic Development Ongoing Threat to LWCF Legacy,” James C. Kozlowski, Parks & Recreation, Sep. 2016, Vol. 50, Iss. 9 mason.gmu.edu/~jkozlows/lawarts/09SEP16.pdf
James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University (jkozlows@gmu.edu). Webpage with link to law review articles archive (1982 to present): mason.gmu.edu/~jkozlows.