The Bush administration may be making legal preparations to undo former President Bill Clinton’s 11th-hour move to declare part of Governors Island a national monument, a reversal that would damage New York’s chances of gaining control of the historic site.
In a memo obtained by The Observer , the Justice Department’s Office of Legal Counsel has advised the General Services Administration, which oversees Governors Island, that Mr. Clinton’s proclamation protecting parts of the island is inconsistent with prior legislation requiring the entire property to be sold at “fair market value” next year. President Bush had previously stated that all of Mr. Clinton’s last-minute executive orders would be frozen pending further review, but Presidential proclamations-such as the one affecting Governors Island-can be reversed only by an act of Congress.
The Justice Department opinion appears to provide the Bush administration with the legal grounds to put the entire island, including the historic fortress that once protected New York Harbor from hostile ships, on the market. The federal government has estimated the island to be worth $500 million, a price that the city and state-and probably most developers-would be unwilling to pay. (The White House referred inquiries to the Justice Department or G.S.A. Neither the Justice Department nor G.S.A. would elaborate on the memo.)
Several proposals designed to mix preservation of the island’s historic buildings with development of the old Coast Guard facilities would be affected, because the proposals are based on either a free or a low-cost transfer of the land from the federal government.
Some of New York’s political leaders-many of whom have seen their influence dwindle in the post-Clinton era in Washington-are anticipating a renewed struggle over the island’s future. “We’re fighting to preserve historic treasures of our country and open them up to the public, and the Bush administration is spending its energy cooking up legal theories to take this island away from New Yorkers,” said U.S. Representative Carolyn Maloney, a Manhattan Democrat who has introduced legislation to transfer control of Governors Island to New York. “Do they think there’s oil in New York Harbor that they can drill for?”
Mr. Clinton’s proclamation, issued on Jan. 19 under the 1906 Antiquities Act, created the Governors Island National Monument, which sought to preserve two early-19th-century structures and 20 acres at the north end of the island. It was hailed as a major victory after years of uncertainty about the uninhabited island’s future. Ms. Maloney and her West Side colleague, Jerrold Nadler, have led the preservation campaign, while their Republican colleagues in Congress have pressed to sell the island at fair market value-a deal that preservationists fear because it would likely lead to large-scale development, and possibly the destruction of historic sites. In 1995, Senator Daniel Patrick Moynihan arranged a deal with Mr. Clinton whereby the federal government would sell the island to New York for a dollar, assuming that the state and city could agree on a plan mixing development and preservation. But in 1997, when no deal had been reached, the Republican-controlled Congress ordered that the island be sold for fair market value in 2002 as part of a budget-balancing package. Mr. Clinton’s last-minute proclamation last January was designed to protect the island’s most historic sites from development once a sale was made.
The Justice Department memorandum, dated April 24, states that in order for any land to be set aside from a sale of the island, ” specific language, leaving no room for doubt as to the legislative will, is required … . ” According to the document, which was written by acting Assistant Attorney General Daniel Koffsky, Mr. Clinton’s directive was not specific enough in prohibiting the sale of the area designated as monuments. “We believe that [previous legislation] would continue to require the sale,” the memorandum concludes.
Not surprisingly, preservationists hope the Bush administration will reject the Justice Department’s opinion. “It seems as if some lawyers at the Justice Department have decided to interpret the language of the proclamation very strictly and narrowly,” said Robert Pirani, a director of the Regional Plan Association and chairman of the Governors Island Group Civic Coalition. “I don’t think that kind of interpretation serves the President well. These lawyers have decided that it’s more important to maintain this fiction of realizing some revenue from the island than it is to recognize that it should be redeveloped in a sustainable way that maintains the public interest.”
Since the early 1990’s, when the Coast Guard announced that it would abandon its base on Governors Island, the island’s future has been a matter of fierce debate. It is currently unused, but the government pays $15 million annually for the upkeep of historic forts, jails, residences and even a nine-hole golf course (the only one in Manhattan, the borough in which the island technically lies). Even the most ordinary buildings, built in recent decades to house Coast Guard personnel, are constantly being repainted, roofed and landscaped. Many of the buildings also house collections of Depression-era artwork commissioned by the Works Progress Administration.
Mr. Moynihan seemed to achieve a breakthrough when, during a helicopter ride over the island, he struck his deal with Mr. Clinton. The subsequent legislation by Congress mandated that the G.S.A. “dispose of by sale at fair market value all rights, title and interests of the United States in and to the land of, and improvements to, Governors Island, New York.”
Finally, in January of 2000, Mayor Rudolph Giuliani and Governor George Pataki came up with a $350 million plan to develop the island with cultural, educational and recreational facilities. The plan, like most others that have been proposed by various developers or civic groups, was premised upon a free, or nearly free, transfer of the island from the federal government to New York.
Since Mr. Clinton’s late-term creation of the national monuments, including one on Governors Island, Interior Secretary Gale Norton has been looking at ways to undo many of those moves. Ms. Norton told the New York Post on April 18 that Governors Island would have to be part of a budgetary trade-off, and that the federal government would have to be compensated for whatever property it gave up. She also sent a letter recently to state officials and Congressional delegations from states with newly created monuments to suggest boundary and other changes, which was reportedly a first step towards scaling back the Clinton-era designations. (During his last two years in office, Mr. Clinton put more than three million acres under federal protection.)
But the Governors Island monument is quite unlike the newly created monuments in the western states, which cover large tracts of land, and the Bush administration would seem to have little to gain by reversing Mr. Clinton’s decision to set aside 20 acres on an uninhabited island in New York Harbor. For now, some of the elected officials most closely involved with the creation of the monument are taking a wait-and-see attitude. “We don’t think that President Bush intends to sell a national monument, and if this were to take effect, we could fix it legislatively,” said Bradley Tusk, a spokesman for Senator Charles Schumer. Others, such as Mr. Nadler, had a different explanation: “If they could, this administration would reverse all of Clinton’s land reservations. They’re just out to undermine anything good that Clinton ever did.”