ELR Citation: ELR 20169
No(s). 84-6207 (2d Cir. Jan 25, 1985)

The court holds that amending a state-held, federally funded conservation easement to allow expansion of a private golf course is a conversion to other than public outdoor recreation uses and so requires federal approval under the Land and Water Conservation Fund Act. The court holds that even though the public currently has no access to the land in question, the land serves a public outdoor recreation use by exposing a scenic vista and acting as a buffer between a state park and developed areas. This holding, which reverses the district court's holding, is consistent with the Act, its legislative history, and administrative interpretation. The court then holds that the proposed amendment of the easement would constitute a conversion to other than outdoor, public, recreational use under §6(f)(3) of the Act. The amendment is in effect a conveyance of part of the easement holder's right to limit development of the land. Under the Department of the Interior's own prior practice, a conveyance for non-public outdoor recreation constitutes a conversion.

The court further holds that the limited consideration that the Department of the Interior gave the amendment when it erroneously concluded that there would be no conversion does not satisfy the §6(f)(3) requirement for federal review of conversions. Finally, the court notes that even if the proposed golf course were to be open to the public, it would still require federal approval. Any change that retroactively contravenes the plans originally submitted to get federal funding would require federal approval.

[The district court case reversed here appears at 14 ELR 20669.]

Counsel for Appellants
Philip M. Dixon, Philip H. Gitlen
Whiteman, Osterman & Hanna
One Commerce Pl., Albany NY 12260
(518) 449-7600

Counsel for Appellees
William P. Fanciullo, Ass't U.S. Attorney
U.S. Cthse., 445 Broadway, Albany NY 12207
(518) 472-5522

Benjamin R. Pratt Jr.
Miller, Mannix, Lemery & Kafin
11 Chester St., Glens Falls NY 12801
(518) 793-6611

Before Kearse and Pollack,^* JJ.