ENVIRONMENTAL DISASTER

My younger brother Bob followed my footsteps into Fordham Law School, then surpassed me by a little bit….to say the least!

He was editor-in-chief of the Law Review; wrote an incisive, seminal article of the then-young  Federal Water Pollution Control Act found at 53 Fordham L. Rev. 903 (1985); clerked for the Hon. Lawrence W. Pierce, a legendary and trail-blazing Judge of the Second Circuit of the federal Court of Appeals; was Staff Counsel to the famous Feerick Commission on Ethics and Integrity in State Government;  then embarked on a career of 30 years as a litigator in the US Department of Justice, making big corporations pay billions of dollars for the costs of cleaning up their toxic messes, suing them under the Comprehensive Environmental Response, Compensation, and Liability Act (a/k/a “CERCLA” a/k/a “the Super Fund Law”).


At any time, with the knowledge and expertise he had attained, he could have taken the revolving door out to one of the powerhouse law firms representing the big corporate defendants in enviro cases and would have commanded a paycheck many, many multiples of his government salary. But he stayed true to his environmentalist values and still says it was always a thrilling and humbling experience to stand up at the beginning of every court proceeding and say, “If it please the Court, Your Honor, my name is Robert Maher and I represent the United States of America.” It was not just a job, but a calling to the cause of environmentalism.

Having retired a few years ago after attaining the position heading up the Northeast region of the DOJ’s Environmental Enforcement Section, he keeps up with former, similarly dedicated colleagues still in environment sections of the Department and here is the devastating Facebook post he made yesterday evening

All cases handled by the Justice Department’s Environmental Enforcement Section are being frozen. The civilian [i.e., non-political] head of that section is being banished to something called ‘the Sanctuary Cities Enforcement Working Group, Office of the Associate Attorney General.’ The heads of three other sections in the Environment Division are getting the same treatment. These are four of the finest environmental and natural resource lawyers in the nation. I guess this is a relatively minor scandal in light of events since January 20th, but reflects the ongoing effort to crush basic government programs that protect the public.

Damn.


PLAYLAND PUBLIC/PRIVATE PARTNERSHIP ENDS IN ACRIMONY

Just three years into the private equity firm Standard Amusements’ takeover of the operation of Playland, this arrangement didn’t even last as long as Trump’s marriage to Marla Maples
See local media reports here and here.

The so-called “Astorino” Contract of 2016 (which four Democratic County Legislators also voted in favor of) was just stupid — a proverbial “sow’s ear.”  The Latimer Amended Contract of 2021 was a valiant but ultimately futile effort to make a “silk purse.” and by that time I was on the Board of Legislators and was one of the four NO votes. As I argued when the BOL was deliberating over this mess in 2021, both contracts were, are and always will be null and void under the long-standing New York common law principle of “parkland alienation,” which prevents lower municipal subdivisions, such as cities, towns, villages AND counties, from turning control of parkland over to a profit-seeking enterprise for an extended period of time UNLESS the deal is approved by both houses of the State Legislature and the Governor. Certainly, the 30-year term of the lease to Standard is a very long time. (BTW, a close reading of the Latimer Amendments reveals that the 30 years to the end of the lease only begins to run when the County has completed 90% of the scheduled capital improvements, and it’s not clear that milestone has been reached yet.)

Note that this followed a strange Bankruptcy Court order that put the County under pressure to negotiate in 2021 but, with legal fees to heavy-hitting outside counsel mounting (eventually totaling $5.5 Million), the County opted not to appeal from the Bankruptcy Judge’s rulings or even raise the parkland alienation issue for that judge’s review and to assert further leverage in the settlement negotiations, which I think might have resulted in buying out Standard for less than all the legal fees expended and to be expended. Certainly, a buy-out figure would have been less than the $57 Million-plus that we’re looking at now.

For you lawyers out there thinking, Wait a minute…2016 contract…2021 amendment…the parties’ ostensibly treating these as binding agreement. Wouldn’t the County be barred from freeing itself from the obligations as a matter of the statute of limitations or estoppel or laches (warning: more law Latin to follow) or reliance on the County’s apparent authority to enter such agreement? But a municipal entity can only act within its authority as granted by the State and any other action is ultra vires and void ab initio. The improperly authorized control of the park by Standard is a continuing wrong, which can be challenged by special proceeding for an injunction or by a declaratory judgment action not subject to any statute of limitations.

 We cannot know what legal strategy was discussed in the BOL’s non-public executive session late Friday afternoon, but upon emerging from that meeting Legislator Pierce suggested that people, businesses and other organizations re-think any plans to buy the season tickets, group packages and sponsorships that are still advertised on Standard’s Playland website. And so it appears that Park’s opening for the 2025 summer season, and maybe beyond, could be in jeopardy due to the legal fight, all to the 
consternation of young families throughout the region.

Incidentally, one the supposed important  “improvements” in the Latimer Amendments was the promise of regular meetings between Standard representatives and a committee of the BOL to discuss current operations, future planning and revenue results, but these meetings became rare and less informative, and the Legislators were totally blind-sided by this termination crisis when it hit the press, two months after Standard warned the Latimer/Jenkins administration that they wouldn’t be returning to run the Park in 2025, which is now just 4 months away. This is particularly galling behavior from two men who both have served as BOL Chair and should know better about keeping the co-equal legislative branch in the loop on such matters. 

NRPD Self-Exonerate in the Jarrel Garris Killing

Here is the statement from Commissioner Gazzola’s office that came out in the media this past Friday afternoon.

Let’s briefly review the facts. Jarrel Garris opened a bottle of water and ate some fruit at a supermarket and left without paying for them. About a half a block away, two  female police officers start ambling along with him, trying to engage this apparently impaired man in conversation, utilizing techniques they learned in training in modern police skills that emphasize preventing minor infractions from escalating into violent situations. Then Detective Conn arrives on the scene and, within thirty seconds of jumping out of his squad car, he inflicts a mortal gunshot wound on Mr. Garris at the double yellow in the middle of Lincoln Avenue. And now the NRPD Commissioner says all three officers were in compliance with the department’s policies and procedures. But given the vastly different approaches of the first two officers from that of the Detective, it’s hard to understand how both approaches could be deemed “by the book.” At the very least, it would appear logically that a thorough, independent review of policies and procedures for stops on minor offenses is in order.

Damon