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NEW YORK v. UNITED STATES GSA

April 5, 1993

STATE OF NEW YORK, Plaintiff,
v.
THE UNITED STATES GENERAL SERVICES ADMINISTRATION and DENNIS FISHER, ACTING ADMINISTRATOR OF THE UNITED STATES GENERAL SERVICES ADMINISTRATION, Defendants.


CHOLAKIS


The opinion of the court was delivered by: CON. G. CHOLAKIS

MEMORANDUM DECISION AND ORDER

 In this action to vindicate the federal Coastal Zone Management Act (CZMA), 16 U.S.C. § 1451 et seq., plaintiff State of New York seeks a permanent injunction requiring the United States General Services Administration (GSA) and its acting director to provide a "consistency determination" prior to selling a single-family residence on the Hudson River in the Town of Athens, Greene County, New York. The State alleges that the sale of the house constitutes a federal activity affecting the State's coastal zone, and thus triggers the procedural requirements of the CZMA and the State's program implementing that statute. The State brings the present motion for preliminary injunctive relief, pending the resolution of the case on the merits.

 Facts

 Pursuant to the federal drug forfeiture statutes, the United States took title to the disputed riverfront residence under Judge McCurn's Default Judgment and Order of Forfeiture, dated September 18, 1990. See 21 U.S.C. § 881(a)(6) (forfeiture of, infer alia, proceeds of drug activity). Pursuant to Judge McCurn's Order, the U.S. Marshal attempted to sell the parcel. After the Marshal's early attempt to sell the property through a private broker proved fruitless, the Marshal enlisted the aid of the GSA, one of the federal government's property management agencies.

 After the GSA advertised the property for sale in a government publication, the State sought from the GSA a formal determination that the sale of the riverfront property was consistent with the State's Coastal Zone Management Plan. *fn1" The parties and the regulations refer to this determination as a "consistency determination." See 15 C.F.R. § 930.34 (1992).

 The GSA responded to several State requests by arguing, in substance, that the sale of the property did not warrant a consistency determination because the property came into federal ownership under the drug forfeiture statutes. Moreover, the GSA argued, the property was not "surplus property" and GSA did not have title to the property. Rather, the agency was serving in the capacity as broker for the U.S. Marshals service, the agency that holds the title. In opposition to the motion for injunctive relief, the U.S. government claims that the State should have sued the U.S. Marshal, not the GSA, because the former owns the property and has the exclusive authority to sell it.

 The Office of Ocean and Coastal Resource Management (OCRM), an agency within the Commerce Department, disagreed with the GSA. By letter, the OCRM informed GSA that the sale of the land constitutes an activity that triggers the CZMA and implementing regulations, and urged GSA to "determine whether the sale of federal property in Athens will affect land or water uses or natural resources . . . ." See Letter from Trudy Coxe to James A. Peterson, dated Oct. 2, 1992 (found at Exh. J to Aff. of Bryan P. Cullen).

 In spite of the requests from the State and the advice from the federal OCRM, GSA refused to make a "consistency determination." In September, 1992, the GSA accepted a bid on the riverfront property. Because of the instant dispute between the State and the GSA, the purchaser of the property and the U.S. Marshal postponed the closing until April, 1993. Through this lawsuit, the State seeks to prevent the closing of that sale and to compel GSA to make a consistency determination.

 Preliminary Injunctive Relief

 A familiar standard governs the granting of preliminary injunctive relief. The State, as the party seeking such relief, has the burden of showing

 
(a) that it will suffer irreparable harm if relief is denied, and (b) either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them fair ground for litigation and a balance of hardships tipping decidedly in plaintiff's favor.

 Castrol, Inc. v. Quaker State Corp. 977 F.2d 57, 62 ...


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