Who REALLY owns Ninigret Park?

Confused Consensus, continued

Charlie Vandemoer - "I'm not a lawyer" but here's my
interpretation of the effect of  Goulding's decision

By Will Collette

The definitive answer that came out of the June 11 Town Council meeting was…WE DO. We, the citizens of Charlestown hold two deeds to the property the town manages as Ninigret Park, and those are the two documents that count..

In a long and tense discussion, the clearest answer came near the end when Charlestown Town Solicitor Peter Ruggiero noted that the town holds two deeds, one to 172 acres of land for recreational use subject to a use plan approved by the National Park Service and one to 55 acres of land that Charlestown purchased directly from the federal government free and clear for $279,000.

Several earlier speakers, including our very insistent federal overseer, Charlie Vandemoer of the US Fish and Wildlife Service, had insisted that all of Ninigret Park, the 172 acres and the 55 acres, were governed by the 1979 final decision of GSA's Acting Administrator Paul Goulding about the disposition of the land.

Vandemoer (and other speakers) had argued that Goulding’s decision required the entire Park to be operated in a manner “not inconsistent with” the wildlife refuge.

Solicitor Ruggiero - ONLY the DEEDS matter

But Ruggiero noted that under Rhode Island law, only the deeds mattered. All preceding documents become meaningless once the deeds are executed.

Elyse LaForest, regional head of the National Parks Service’s Federal Lands to Parks Program, stated that all she was interested in was the deeds. And only the 172 acre deed and its requirements came under her jurisdiction.

She said that if somebody wanted to try to convince the General Services Administration to try to impose the Goulding 1979 decision language on the 55 acres, they were welcome to try, but she didn’t offer much hope to that approach.

LaForest took the podium several times to try to patiently – and precisely – answer questions. When she introduced herself, she described her responsibilities as representing the Secretary of Interior in overseeing over 400 federal lands to parks transactions in 20 states spread across the northern United States. As such, it is she (not Charlie Vandemoer) who is responsible for exercising federal rights over lands under that program.

She made it clear that her interests were to ensure Charlestown followed the requirements laid out in the deed to the 172 acres. This meant that the land was used according to its approved utilization plan for passive recreational activities open to all.

National Park Services' LaForest - I have no jurisdiction
over the town's 55 acres

She said she had no jurisdiction on the 55 acres but made one caveat. If Charlestown did something crazy on its 55 acres – the example she gave was to build a nuclear power plant – that severely effected the recreational use of the 172 acres, she would consider that a breech of Charlestown’s duties to maintain the 172 acres for recreation.

She also noted that if a non-recreational use of the town’s 55 acres spilled over onto the 172 acres, she would have a problem with that. 

Again, depending on the specific nature of the town’s activity, she might consider that a breech of the town’s duties on the 172 acres. She noted this as the reason for her opposition to the sports lighting project (spill-over on the 172) and the municipal wind turbines (she rejected the scenario of siting the generators on the 172 acres).

CCA Town Council President Boss Tom Gentz asked LaForest several questions related to the concern he himself had promoted last March that OMG! The Feds are going to take the Park back!!!

Has this ever happened, asked Gentz?

Yes, answered LaForest. but rarely. She described a case she’s working on now involving a New Jersey property, a building that she described as being pretty valuable. The municipality was supposed to use the property for recreation, but the municipal officials, according to LaForest, “considering the storage of a football in a closet as recreation.”

Because the New Jersey municipality appeared to have no intention to actually use the property as recreation, the National Parks Service felt it had no choice but to start the “reversion” process. She noted that occasions like this are rare and the federal government acts only under extreme circumstances when all else fails.

LaForest's remarks are consistent with what I found when I researched reversions in the federal surplus property program - reversions are rare, complicated and expensive. The feds resort to reversion only when the local recipient of the federal land commits some outrageous breech and will not remedy it.

She made it plain that, in her opinion (and in my opinion, her opinion was the only one in the room that really counted), Charlestown was not, is not and probably won’t ever be in any danger of “reversion.” 

That is, unless we do something incredibly stupid on the 55 acres that significantly impacts the recreational use of the 172 acres. So no nukes, no garbage incinerators, no fireworks factories, no rattlesnake ranches, no slaughterhouses, on the 55 acres. Nothing that would ruin the recreational use of the 172 acres.

Not everyone in the audience was completely happy with the opinions from Solicitor Ruggiero or Ms. LaForest. It seemed that some wanted them to support turning all of Ninigret Park into a wildlife refuge, or at minimum, putting all of it under the direct control of Charlie Vandemoer.. 

Bonnie Van Slyke, for example, gave a history of the land from its life as a Naval aviator training base to its current state. She opined the Goulding decision meant that the entire property should be a wildlife refuge..

And Charlestown’s sixth Town Council member, Charlie Vandemoer of the US Fish and Wildlife Service, continued to push his view that he is entitled under the Goulding decision to a major say over what happens throughout Ninigret Park.

He kept it up all the way through the Council meeting, working a duet with CCA Town Councilor Deputy Dan Slattery, whose MOU (“Memorandum of Understanding”) that would have given Vandemoer veto over town uses of Ninigret had morphed into a tribute to “improving our communications.”

Deputy Dan Slattery: It's just about "improving
communications" not all the things I said before Trust me.

In sharp contrast to the over-eager Vandemoer, Ms. LaForest said flat out that she had no interest in being part of any MOU or any other crafted process because, as she said “our contract is the deed and the program of utilization” for the 172 acres.

With 450 parks in 20 states, said LaForest, she already had enough on her plate without needing to be intimately involved in Charlestown’s decisions.

But apparently Charlie Vandemoer has a lot more time on his hands, even though he is responsible for all of Rhode Island's national wildlife refuges, because he pressed his case for Deputy Dan’s MOU.

He said it would require no allocation of resources and would not give him any new authority. All it would do, he claimed, is improve communications. Plus, he had a CCA contingent in the audience who apparently wanted to give him whatever he wanted. 

Deb Carney asked Solicitor Ruggiero for an interpretation of the legal meaning and force of an MOU. Ruggiero answered flat out that “it’s a contract” and that its effects would depend on what was written into it.

Pro-MOU speakers, such as former federal employee (and CCA blogmeister) Mike Chambers and of course Deputy Dan Slattery minimized the concerns that we would be creating contractual obligations. Chambers said that as a federal employee, he was involved in writing “dozens” of MOUs without the use of a lawyer.

Even Boss Gentz found that one hard to swallow and interjected that, in Charlestown, we were going to use a lawyer and pointed to Ruggiero.

Solicitor Ruggiero made a comment I found compelling. He reacted to all the hypothetical circumstances being thrown around that could trigger a legal dispute between Charlestown and the National Park Service. He said the goal should be to try to prevent that from happening. It makes more sense to informally discuss new projects in the early stages rather than 

Though the land ownership questions were largely clarified by the end of the evening, the question of what to do about the disputes over the past several months remain a serious loose end.

That there was a Council consensus that “improving communications” is a good thing. Who can argue with that? But the question of whether Charlestown needs a legally binding document or simply a promise or policy, is still unresolved.

Also unresolved is how to frame such a document, pledge or policy and who should be the principal parties. Councilor Marge Frank said the Parks and Recreation Commission should be the lead. But Planning Commissar Ruth Platner immediately rose to challenge Frank, saying Marge failed to acknowledge the Planning Commission’s primacy as the direct center of Charlestown’s universe (or words to that effect).

By the end of the night, Vandemoer had moderated his pitch a lot, saying in the end that all he really was asking for was “a head’s up” if something new was planned for Ninigret Park. Quite a difference from his assertion that his interests in the wildlife refuge had legal dominance over the town's use of Ninigret Park.

So the Council was then ready to vote on a motion to have Town Solicitor Peter Ruggiero craft something that would somehow “improve communications.” I’m not joking – it really was that vague and fuzzy – and the response could be anything - a formal contract or giving Charlie Vandemoer the keys to Ninigret Park or buying a box of Hallmark “Thinking of You” cards.

I think improved communications is a wonderful thing. I hope Peter comes up with something that works while preserving each party’s legitimate legal rights.

As I keep going over the timeline and documents of the past year, we came to that critical juncture on June 11 because of festering political divisions in Charlestown. This was a powder keg ready to blow. The spark that set off the explosion was the sports lighting proposal last winter.

Town staff made some boneheaded errors, but the point of no return came when Charlie Vandemoer decided to write the letter to RIDEM to kill the funding for the project without any recorded effort to communicate with the town.

That letter stirred Deputy Dan to launch the Battle for Ninigret Park and he dragged Boss Gentz along for the ride. They became so afraid of offending the feds – or more specifically, Charlie Vandemoer – that they forgot they are supposed to be fighting for Charlestown’s interests.

How differently would things be today if Charlie Vandemoer had practiced what he now preaches and tried to resolve issues amicably at the lowest possible level – such as a meeting with the Parks & Recreation Commission or with P&R Director Jay Primiano – instead of spiking the DEM grant?

I hope, in time, perhaps with different leadership, some healing can take place. We may have a “confused consensus” for improved communications, but it beats having no consensus at all.

To read GSA's decision and other historic records on the transfer of the old Charlestown Naval Auxiliary Air Field to Charlestown and the Interior Department, click here.

To read more about the intervention of US Fish and Wildlife's Charlie Vandemoer in Charlestown politics, click here.

To read more about the Battle for Ninigret Park, click here.