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Appellate Court Upholds Lower Court Ruling on Development at Gateway National Recreation Area


Could a court's ruling Friday turn historic Fort Hancock's Parade Ground into a commercial sector? NPS photo.

A federal appellate court in New Jersey has upheld a lower court's opinion that the National Park Service was within its rights to lease nearly three dozen historic buildings at Gateway National Recreation Area to a commercial developer.

The ruling by the U.S. Court of Appeals for the 3rd Circuit is a blow to Save Sandy Hook, a non-profit group that has fought to prevent a developer from commercializing part of Fort Hancock, a post-Civil War fort that falls within the NRA.

The developer, Jim Wassel, has maintained that his efforts will benefit the facilities by restoring and maintaining them, as opposed to watching them continue to deteriorate because the National Park Service lacks the financial wherewithal to do just that.

Among Mr. Wassel's plans for his $70 million-$90 million "restoration" of Fort Hancock is to possibly turn 16 Officer's Row homes into bed-and-breakfast inns. A dorm once used for U.S. troops could be transformed into classrooms for Rutgers University or perhaps Brookdale Community College. Mess halls, gymnasiums, even the old mule barn and the officer's club, would be turned into who knows what to generate profits for Mr. Wassel. And the NPS would spend $2.2 million on a new dock so he could ferry conferees over to Fort Hancock from Manhattan.

Of course, some wonder whether Mr. Wassel has the financial wherewithal to get the job done. Back in 2001 the developer was awarded a 60-year-lease on 34 historic buildings in Fort Hancock, contingent upon him proving he had the financing to restore and operate the facilities. Just this past July the National Park Service granted Mr. Wassel a sixth extension to prove he has the funding needed to accomplish the task.

Save Sandy Hook officials long have questioned the appropriateness of the lease, arguing that it is contrary to the National Park Service's mission. In their legal battle the group has maintained that “[t]he proposed uses authorized by the Lease amount to a thinly disguised corporate office park in derogation of the purposes and values for which the Sandy Hook Unit was created and, as a result, will result in the crass commercialization and privatization of the Sandy Hook Unit in violation of the purposes and values for which Gateway was established.”

However, a year ago a lower court dismissed the group's case. Appealing to the appellate court produced the same result. In a very brief opinion issued today the court held that, "We have carefully examined the record and considered the parties’ arguments on appeal and can discern no error in the District Court’s ruling."

That said, a congressman has called for an investigation into the matter, and the resulting report from the Interior Department's Inspector General has yet to be issued.

Legal findings aside, this deal raises some philosophical questions (which I've raised before). For starters, will this deal, and others being considered by other cash-strapped parks, encourage National Park Service managers across the National Park System to commercialize operations rather than wait for federal funding to maintain facilities?

If so, is it appropriate for the general public to, in effect, pay several times (1. Through their taxes that fund the federal government. 2. Through entrance fees to the park in question. 3. Through fees charged by these commercial interests operating within parks) to see or enjoy the parks it in theory owns?


Setting aside the funding questions, which are troubling to say the least (but pale in comparison to all the other waste & graft existing in the federal government today), I actually don't have a problem with commercial development in Fort Hancock.

When I toured the place last year, I thought it was a great idea. Why? Because it puts businesses and residences in a historic district, instead of letting said district gather dust waiting for random history enthusiasts such as myself. As long as the physical integrity of the site doesn't change, so you can still see the significance of it, why not put it to use? They are keeping a few of the more important locations under complete NPS control and open to the public, aren't they? What are they supposed to do with the rest of the buildings? Clearly the NPS can't maintain them all.

I will say that this area is uniquely suited to such development, I don't think I've seen any other site that could be developed in this manner. I don't think you can use this case to fuel a "slippery slope" argument regarding commercial development in other National Park Service sites.


My travels through the National Park System:

I can tell you that as a national park superintendent I am planning on a similar project in my park. It is either that, or watch the historic buildings collapse. We cannot afford to maintain them and they will soon reach a condition where they will have to be torn down for safety reasons alone. Park managers are doing the best they can with what they have.


Let's see, the Presidio has already gone done this road, jumping into commercial development with both feet; at Alcatraz they leased out the prison to Toyota for a bash with alcohol and, some say, marijuana; at Boston National Historical Park they rented out the Charleston Navy Yard for a corporate affair; I seem to recall mention of Cuyahoga Valley National Park also thinking of leasing out facilities. And, as Anonymous says, at least one other national park superintendent is looking closely at the Fort Hancock model.

Here are some snippets from a post I wrote back in August 07 after the Charleston Navy Yard and Alcatraz affairs.

Already this summer there have been two special events that some have called into question: The Toyota Scion party at Alcatraz in Golden Gate National Recreation Area, and the McKesson bash at the Charlestown Navy Yard of the Boston National Historical Park. What some have found objectionable is that neither event meshed, culturally or historically, with their respective settings. Rather, the decisions to OK both events seem to be based simply on drawing crowds to the park units for after-hours affairs.

Will we see private parties on the boardwalk that wraps Old Faithful? I'm told not. But who knows? Whether the Alcatraz and Charlestown Navy Yard affairs were the only special-use events that have been at odds with their settings is not easy to ascertain, as the Park Service's Washington headquarters does not track special uses.

Indeed, in the case of the Alcatraz and Charlestown affairs, the Park Service's point person for special uses had no advance knowledge of the parties.

Were the Alcatraz and Charlestown parties big deals? Considered in a vacuum, probably not. But if they set precedents that will open other units of the national park system to similarly questionable uses, these bashes were very big deals.

Another concern is that while NPS Director Mary Bomar promised Congress that she would see that transparency is key in how her agency conducts business, that message does not seem to be trickling down to all units of the Park Service. While the folks at Golden Gate were more than willing to discuss how they handled the Toyota party, those at Boston National Historical Park largely have turned a deaf ear to questions about how they manage special uses in general and, more specifically, why they approved the McKesson party.

So far they refuse to discuss:

* The parameters of the contract with Amelia Occasions, a wedding and special events planner, and what it requires from Amelia in terms of payment for the use of the Navy Yard's Commandant's House or whether Amelia is responsible for maintenance of the house;

* How many special events they allow each year;

* How much revenue, if any, these events generate, and;

* Why the McKesson party, which required a dozen tents to dispense alcohol to roughly 3,500 invitees, was permitted when Director's Order 53 clearly states that special uses that are contrary to the purposes for which a park was established or which unreasonably impair the atmosphere of peace and tranquility maintained in wilderness, natural, historic, or commemorative locations within the park should not be allowed.

They have said, though, that the best way to preserve a historic building is to use it.


While efforts to lure new audiences are laudable, there are some within the Park Service who question how these efforts are being carried out.

"My feeling is that this is out of control. I think the message from (Director) Bomar and others is see if you can make money," one ranger told me. "I think you can do these events without desecrating or bastardizing the resource or the image. But we're not."

Barky, you're right that the NPS can't currently maintain all its facilities appropriately. But that's not because we as a nation can't afford to do so.

I'd suggest that if Congress can attach $6 BILLION in EARMARKS to legislation as it recently did, if the administration can even talk about bailing Wall Street out to the tune of $700 BILLION, and in light of the fact that Washington is spending BILLIONS every month in Iraq, that money exists to help the parks.

And we're not talking about infusing tens of billions of dollars into the park system to properly maintain it. Far from it. Here's piece of a post I wrote in June about properly funding the parks:

Regular Traveler readers might recall an essay of Dr. Pitcaithley's that was highlighted on this site last fall. In it he argued that the Park Service’s budget, currently running at about $2.3 billion, should be at least $5 billion or $6 billion to adequately meet the agency’s needs. In justifying that investment, Dr. Pitcaithley points not just to the recreational value of the National Park System, but to its educational, scientific, and preservation missions. Cast another way, when we fund the National Park Service we’re not just investing in trees and mountains and gorgeous landscapes, but in both this country’s past and its future, in both its culture and its knowledge base.

Unfortunately, we seem to have lost sight of those values and possibly have begun to take the national parks for granted, figuring they're well taken care of now and will be tomorrow.

“The chronic under-funding of the National Park Service is not now and has not been for the past 50 years a matter of money – it is a matter of priorities!” Dr. Pitcaithley told those who attended that conference back in April. “Five billion dollars amounts to 0.002 percent of the president’s 2008 proposed budget.”

For the sake of comparison, while the National Park Service slogs along with its insufficient budget, the Defense Department is funded at roughly $550 billion, the professor points out. Just one B-2 bomber costs $2 billion, he adds for emphasis.

“Do you really think the American people would notice if this country’s military industrial complex held one less bomber than it does today and that those funds were transferred to the National Park Service?” he wonders. “The president and Congress took less than ten minutes to determine that the economy needed an economic stimulus package totaling $150 billion. Do you think anyone would have complained if it were $148 billion? And the resulting $2 billion saving were given to the National Park Service?”

I fear that if park advocates don't raise a stink over the current funding inequities, if they go along with the commercialization of the National Park System, Congress won't spend more, and very likely will spend less, on the parks.

Let not confuse one time events (Alcatraz and Boston) with long term commercial use of historic buildings. Two times now, decommissioned military complexes were handed over to the NPS: Fort Hancock at Sandy Hook and the Presidio of San Francisco. These complexes consist of vastly more buildings then the NPS unit can use for its own purposes - from museums, visitor facilities, eventual concessionaires and administration.

So what is the NPS to do with buildings it has to maintain but can't use? In case of the Presidio we are talking about 870 buildings, in Fort Hancock only 50 or so. There simply is no alternative to leasing them to commercial uses. And who would want to visit a park full of buildings with dark windows and badly maintained roads and walkways? Get life into the complexes, modern life, commercial life, sustainable uses. About 2500 people live in the Presidio of San Francisco, some in former officer housing, beautiful Victorian or Revival style buildings with a views onto the Bay, the Golden Gate Bride, the ocean or downtown.

If you believe this is not consistent with the mission of the NPS, then give those installations to some other agency, but it would be foolish not to use them.

With all due respect to MRC, the NPS has a lot more than 2 decomissioned military bases. Cape Cod and Acadia have substantial military bases. Santa Monica Mountains, Indiana Dunes, Gateway, Golden Gate, and a host of other parks have old Nike missile bases, heck, the entire park of Minute Man Missile is a former military base. And that doesn't count all the historic forts. Indeed, the NPS has the former military gun and fort sites protecting almost every major harbor in America including Baltimore, San Francisco, San Diego, New York, Charleston, and Boston. I say we re-arm these places and the NPS can REALLY have a funding bargaining chip - they can threaten to close down the harbors! :-)

Kurt, I hear what you're saying, but your dream of a Congress that fully funds the NPS, or of taxpayers willing to pay more in taxes to fully fund government projects in general, is a dead one. The NPS has no choice but to allow commercial use of these facilities whenever prudent.

It's either that, or as MRC has stated, give these properties over to someone else. The idea that all this property can be properly managed by a government agency or with public funds in this day and age is untenable.



My travels through the National Park System:

We need some context here. We are mixing apples and oranges, and there ARE some scary issues presented by the various cases Kurt has raised:

-- Charlestown Navy Yard is not following the obvious law in the way it is commercializing the Commodore's House. It is using a cooperative agreement via a third party middle-man, which is the wrong instrument despite extensive congressional effort to provide NPS with the correct instruments. Also, NO revenue is coming back to the NPS. The congress provided either the concessions law, as a mechanism for competitive selection of a vendor plus max revenue, or the historic leasing law. NPS thinks, and may be right, that it can use the historic leasing law for spot occassions (parties, events) rather than the 12-7 type lease happening at Sandy Hook at Gateway NRA in New Jersey. The public opportunity to see the Commodore's house is not completely compromised by these events, that normally do not hinder public visits. But the agreement being used here is a dangerous and lazy precedent. The lawyers for NPS are up in arms over the use of the cooperative agreement for this one.

NPS should use the right instrument, where it can control the activities in a thoughtful way.
I am guessing the reason the park is not using the historic leasing act, is that NPS cannot use a 3rd party as middle-man with the historic leasing act, and must keep all the revenue if it did use that act. the proper instrument here is probably the Concession law.

-- Gateway NRA, Sandy Hook in New Jersey: this is a bad example for a precedent for anything, and must be examined carefully before it is used as a precedent. These structures are the primary structures of a National Historic Landmark. These are very significant structures, and among the only specific things mentioned the the (really pretty pathetic) legislation for Gateway, that mentions very few specific resources as of prime significance. The weird part is IT IS within the law to use the historic leasing act, at least as the NPS defines the purpose of that act. THE PROBLEM with this, is in effect the historic leasing act conflicts with the NPS Act of 1916, the Organic Act of the NPS. Much of his prime resource of the park, these beautiful historic structures, according to the Gateway establishing legislation, will be closed to public use. The NPS Act of 1916 states that the purpose of parks is public use, yet the leasing act allows the NPS to take a structure out of use to preserve it.

It is true the NPS cannot think of what to do with the Ft. Hancock structures, it is also true that it never even asked congress for the money. It is also true that practically the real purpose of Sandy Hook is the beach, and Ft. Hancock is not the reason for visiting the park. In theory, the right thing to do, even though NPS now is operating within the authority of the leasing act, would be to go to congress and get an exception in this case. Otherwise, the scary thing is primary park resources are being removed from public use and enjoyment, as required by the Act of 1916. WE CANNOT HAVE CORE PARK RESOURCES COMMERCIALIZED TO THE POINT THAT THE PUBLIC IS EXCLUDED, even if NPS things the leasing act makes it lawful. I am all in favor of adaptive re-use of public buildings, but we are beginning to see some very scary proposals in NY now that would take core nps facilities and turn them over to others.

[The other pretty scary way Gatway is turning the law upside down is a conflict over wetlands restoration vs preserving military sites as historic. Many thought when Gateway was established that the old airfields were just surplus property, that should be remove. The establishing act says nothing about the airfields in the Jamaica bay protion of Gateway. Yet the NPS is maintaining them, and preparing historic documentation, as if these are prime resources. The higher use may be to permit wetlands to be reestablished at these sites. Those wetlands were destroyed to build the macadam strips, and wetlands loss is killing the Jamaica bay protion of the park. This issue should be taken head on, because we have a real conflict of appropriate use here, created by conflicting laws.]

-- Golden Gate in San Francisco has a lot of special legislation, permitting special uses not enjoyed (?) by other NPS units. Although former Director Fran Mainella and others constantly put Golden Gate up there as a model for other parks, it is not a good model because the only reason the whole thing works is that Alcatraz is a cash cow that underwrites the corporation that runs much of the parks' partnership and friends-group activities.

Some of the comments on this thread are right about the NPS taking over management of military sites after the military decides it can no longer afford them. They need to come with an endowment, with all hazmat and maintenance brought up to standard, and maybe with special legislation to enable revenue generation if the NPS is to take them over.

I hasten to say I agree with Barky that the leasing idea with Wassel is a good idea, but I think NPS should have (IE: get congressional approval) explicit authority to use historic leases to displace public use of prime park assets. I agree that Ft. Hancock is a bad example, and is not a good precedent to use on other parks. (eliminating public acccess to prime park resource, I mean) There are now other proposals in New York to turn primary park resources over to private interests, and this needs to be addressed head on, so no bad precedents come out of this. But, on the merits alone, the idea of restoration via a lease at Ft. Hancock is a good idea. Just not a good precedent.

But I think Barky is wrong about the money. The money IS there for parks. Like the NPS Directors of old, the NPS needs to go out and get the money. The national park service needs to go back to fighting for the money.

NPS has allowed the enemies of the NPS to use the justification that the reason they don't want to provide the money is they just don't think the NPS is fully accountable. This justification is a cover for people who began their careers opposing the Mission of the NPS. NPS could double, triple, quadruple its budget and it would be a blip in the federal budget.

Here is how the cover works. We have had 2 Director's now, and actually several since President Reagan, who keep adding new adminisTRIVIA to the duties of managing the parks, so as to "prove" parks are accountable. None of these efforts lead to more funds, only more administrivia consuming the energy of parks. I am talking about things like "core mission" surveys" "most efficient organization programs" and "GPRA." The United States needs to stop picking Directors the way they picked Sara Palin. We need people able and willing to fight for parks, not media picks. We have people as Director now who are chose because it is known they will NOT expose the Members of Congress and the Executive Branch who get to hide behind this "accountability" argument. We need Directors who will fight for parks in trouble, like Valley Forge and Yellowstone, and not just let them secumb to political rhetoric.

Barky may be implying there may be middle grounds for the money, and if he is saying this, I agree with him. There are a lot of sources of funding out there, and NPS needs to use all the means of generating revenue or getting appropriations it can, provide it does not violate the Mission of the park service.

The problem now with the whole Ft. Hancock thing is the delay has been so long and so unconscionable, that there is no way the banks who once were prepared to lend money to Wassel are still willing and able to do so. He won't be able to get the money in this environment. This congressman, Pallone, seems to be without any ability or sense. If he does not want NPS to use the leasing law, then he must fight for straight appropriations for the park. He neither supports the lease, nor gets the money to restore the buidings, and manages to stymie the whole thing so long, these beautiful building will just rot. He should be ashamed.

Too many Members of Congress just want to make sure they have no responsibility for anything, but just want to attack anyone trying to make something happen. We should start targeting the people who obscure and avoid helping the parks, and stop targeting the people are are trying to get the money.

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