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FRIENDS OF THE SHAWANGUNKS v. CLARK

April 2, 1984

FRIENDS OF THE SHAWANGUNKS, INC., Sarah L. Johnston, John Johnsen, Keith La Budde and Frank Wright, Plaintiffs,
v.
William CLARK, Secretary, United States Department of the Interior, Russel E. Dickenson, Director, National Park Service, James W. Coleman, Jr., Regional Director, National Park Service, Mid-Atlantic Region, Don H. Castleberry, Deputy Regional Director, National Park Service, Mid-Atlantic Region and Marriott Corporation, Defendants.



The opinion of the court was delivered by: MINER

MEMORANDUM-DECISION and ORDER

MINER, District Judge.

 I

 Plaintiffs, Friends of the Shawangunks, Inc. and four of its members, seek review by this Court of a determination made by the National Park Service of the United States Department of the Interior, contending that the federal defendants have not fulfilled their obligations under the Land and Water Conservation Fund Act of 1965, as amended, 16 U.S.C. §§ 460d, 460 l -4 -- 460 l -11. Jurisdiction in this Court is asserted pursuant to the provisions of 28 U.S.C. §§ 1331 and 1361. Before the Court are motions by the federal defendants to dismiss the action for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6), or for judgment on the pleadings, Fed.R.Civ.P. 12(c), by intervenor-defendant Marriott Corporation to dismiss, Fed.R.Civ.P. 12(b)(6), for judgment on the pleadings, Fed.R.Civ.P. 12(c), or for summary judment, Fed.R.Civ.P. 56(b), and by plaintiffs for summary judgment, Fed.R.Civ.P. 56(a).

 II

 Friends of the Shawangunks, Inc. is a not-for-profit corporation organized under the laws of New York State. It has approximately 600 members, and is devoted to ensuring the "preservation and prudent development of the Shawangunk Mountains in Ulster County, New York, as a national resource for all to enjoy." Complaint, P3. Named as defendants herein are William Clark, *fn1" Secretary of the Department of the Interior; Russell E. Dickenson, National Park Service Director; Don H. Castleberry, Deputy Regional Director, National Park Service; and the Marriott Corporation. *fn2" Although the facts surrounding this controversy already have been set out in this Court's Memorandum Decision and Order of March 25, 1983, *fn3" they will, for the reader's benefit, be repeated here.

 The Land and Water Conservation Fund Act of 1965, as amended, 16 U.S.C. §§ 460d, 460 l -4 -- 460 l -11 (the "Act"), provides for matching grants from the federal goverenment to the several states for the acquisition, development and general planning of public outdoor park and recreation facilities. In 1977, New York State acquired 1,370.49 acres in fee simple and 239.42 acres as a conservation easement contiguous to Minnewaska State Park in Ulster County. Federal matching funds of $542,375.00 were provided to New York for this acquisition.

 Both the fee and the conservation easement were acquired by the Palisades Interstate Park Commission ("PIPC") from the now bankrupt Lake Minnewaska Mountain Houses, Inc. The present controversy concerns Marriott's proposed use of the lands subject to the easement only and does not concern the fee acquired by the PIPC.

 The conservation easement was acquired by the PIPC

 for the purpose of, but not solely limited to, the conservation and preservation of unique and scenic areas; for the environmental and ecological protection of Lake Minnewaska and its watershed; and to prevent development and use in a manner inconsistent with the present use and operation of lands now owned and to be conveyed to [PIPC] and to be part of Minnewaska State Park. . . .

 Restated and Amended Conservation Easement Agreement, Administrative Record (AR) at 328.

 Subsequent to PIPC's acquisition of this conservation easement, Marriott has been negotiating with Lake Minnewaska Mountain Houses for the purchase of real property including Lake Minnewaska and the lands subject to the conservation easement. It is Marriott's desire to develop a resort facility by expanding the facilities now owned by Lake Minnewaska Houses. The proposed construction includes a 400 room hotel, 300 condominium units, restaurants, ski facilities, and an eighteen hole golf course to replace the existing nine hole golf course. The present controversy arises because eight of the additional nine holes for the golf course, as well as expanded support facilities, including a club house and parking facilities, would be located on the lands subject to the easement.

 In order for Marriott to undertake the proposed construction, it first was necessary for it to seek an amendment to the conservation easement. Although to date the easement has not been amended, on July 20, 1981 PIPC resolved to amend the easement to allow Marriott to expand the golf course, develop support facilities, increase utilization of water from Lake Minnewaska and provide public hiking trails in the easement area.

 Section 6(f)(3) of the Act, 16 U.S.C. § 460 l -8(f)(3), provides in part:

 No property acquired or developed with assistance under this section shall, without the approval of the Secretary, be converted to other than public outdoor recreation uses. The Secretary shall approve such conversion only if he finds it to be in accord with the then existing comprehensive statewide outdoor recreation plan and only upon such conditions as he deems necessary to assure the substitution of other recreation properties of at least equal fair market value and of reasonably equivalent usefulness and location.

 Implicit in this statutory provision, of course, is the necessity for a preliminary determination of whether a "conversion" will in fact occur. In this regard, Don H. Castleberry, Acting Regional Director of the Mid-Atlantic Region of the National Park Service, determined that allowing Marriott to proceed with its intended construction would not result in a 6(f) conversion of the lands subject to the conservation easement. In a letter to Albert E. Caccese, Deputy ...


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