Opposition Brief — Field v. United States

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Supreme Court of the Anited

October Term, 1972

No. 72-1028

FRED R. FIELD, JR., individually and as President of the New

York District Council of the International Longshoremen’s Asso-

ciation, Executive Officer of Local 856, and on behalf of all long-

shoremen, seamen and citizens whose rights are involved and/or

have an interest in the establishment of the World Trade Center

in the downtown area of the Borough of Manhattan, City and

State of New York,

Petitioner,

against

UNITED STATES OF AMERICA, THE CITY OF NEW YORK,

and THE PORT OF NEW YORK AUTHORITY,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

CourRT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION TO PETITION

FOR CERTIORARI

PATRICK J. FALVEY

General Counsel of, and Attorney for

Respondent, The Port Authority of

New York and New Jersey

Office and P. O. Address

111 Eighth Avenue

New York, New York 10011

Tel. 620-7380

ASIN SiN RAINEY RNA aR DI MIRA NEALE HPL ATE IRON AA

2 On the Brief:

JOSEPH LESSER

Assistant General Counsel

and Chief, Opinions and

Appeals Division

IsOBEL E. MUIRHEAD

Deputy Chief, Opinions and

Appeals Division

RALPH SALTz

Attorney

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TABLE OF CONTENTS

PAGE

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TABLE OF AUTHORITIES

CasEs : ‘

Bush Terminal Co. v. City of New York, 282 N.Y.

306, 26 N.E. 2d 269 (1940) .................- 10, 11

Courtesy Sandwich Shop, Inc. v. Port of New York

Authority, 12 N.Y. 2d 379, 190 N.E. 2d 402, 240

N.Y.S. 2d 1 (1963), appeal dismissed for want of

a substantial Federal question, 375 U.S. 78

(1963), rehearing denied, 375 U.S. 960 (1963) .. 10

Field v. United States, 340 F. Supp. 175 (1972)

1, 6, 9, 10, 11

Jolles Foundation, Inc. v. Moysey, 250 F. 2d 166

EE IE Sie pai in cdapus es bueno dhe uns ame 9

Matter of Port of New York Authority (World

Trade Center), 18 N.Y. 2d 250, 219 N.E. 2d 797,

273 N.Y.S. 2d 337 (1966), certiorari denied sub

nom. McInnes v. Port of New York Authority,

OS os Sie cuvcvcacepawccoanss 10

Supreme Court of the United States

October Term, 1972

No. 72-1028

Frep R. Fievp, Jr., individually and as President of the

New York District Council of the International Long-

shoremen’s Association, Executive Officer of Local 856,

and on behalf of all longshoremen, seamen and citizens

whose rights are involved and/or have an interest in the

establishment of the World Trade Center in the down-

town area of the Borough of Manhattan, City and State

of New York,

Petitioner,

against

Ustrep States or America, Tue Crry or New York, and

Tue Port or New Yorx AUTHOnrITY,

Respondents.

Ow AppgaL ror a Writ or CERTIORARI To THE Unrrep States

Court or APPEALS FOR THE Seconp Cracurr

>.

a

BRIEF IN OPPOSITION TO PETITION

FOR CERTIORARI

Opinion Below

The District Court for the Southern District of New

York dismissed portions of the complaint for failure to

state a claim upon which relief can be granted and other

portions for lack of Federal Court jurisdiction. Its

opinion, written by Judge Arnold Rauman, is reported at

+40 F. Supp. 175 and is set forth in the appendix to the peti-

tion at pages A-3—A-11. The Court of Appeals for the

Second Circuit affirmed the District's ¢ ‘ourt’s decision from

the bench, without opinion, on October 30, 1972.

Questions Presented

(1) Is petitioner being denied any Federal right, con-

stitutional, statutory or otherwise (a) by the construction

of a landfill project which Congress has expressly author-

ized; (b) by the construction of the World Trade Center

whose authorizing legislation has previously been upheld

by this Court; or (c) by the operation of the Port Authority

Trans-Hudson Railroad (PATH) whose authorizing legis-

lation has likewise been previously upheld by this Court?

(2) Does Federal Court jurisdiction exist over an action

seeking a declaratory judgment concerning the tax status,

under Federal law, of the World Trade Center and/or of

The Port Authority of New York and New Jersey which

constructed and is operating the Center?

(3) Does petitioner’s prayer for a judicial declaration

concerning the obligations of The Port Authority of New

York and New Jersey ‘‘to provide adequate financing for

the continued operation of the Port Authority Trans-Hud-

son system’’ present a case or controversy within the juris-

diction of the Federal Courts?

Statutes Involved

The pertinent statutes, 33 U.S.C. § 403 and 33 U.S.C.

§ 59e-1, are set forth in the appendix to the Petition at

pages A-10—A-11.

Statement of the Case

This purported class action seeking declaratory relief

was brought by petitioner, individually and as President

of the New York District Council of the International

Longshoremen’s Association ‘‘on behalf of all longshore-

men, seamen and citizens whose rights are involved and/or

3

have an interest in the establishment of a World Trade

Center in the downtown area of the Borough of Manhat-

tan.”’ The respondents are the United States of America,

the City of New York and the Port Authority of New York

and New Jersey (formerly the Port of New York Aun-

thority). The last named respondent is an agency of the

States of New York and New Jersey created in 1921 by an

interstate compact between them to which Congress con-

sented. N.Y. Unconsol. Laws $4 6401 et seg. (McKinney’s

1921); N.J.S.A. §§ 32:1-1 et seq. (1921); 42 U.S. Stat. 174

(1921).

The action was commenced on May 2, 1967, a few months

after the Port Authority was granted a permit by the

Corps of Engineers, dated December 21, 1966, to place

fill from the excavation at the World Trade Center site in

the nearby Hudson River. The Port Authority was directed

to construct the World Trade Center by legislation of the

two States enacted in 1962. N.Y. Unconsol. Laws §4 6601

et seq. (McKinney’s 1962); N.J.S.A. §§ 32:1-35.50 et seq.

(1962).

The landfill development, which necessitated the elimi-

nation of several piers owned by the City, was one of the

earliest steps in the effectuation of the City’s comprehen-

sive plan to revitalize lower Manhattan. One of the recom-

mendations contained in this comprehensive plan, known

as the Lower Manhattan Plan,’ is the redevelopment of

the Hudson River waterfront through the elimination of

deteriorating piers and the placing of fill in the river on

City-owned underwater property to create additional land

for housing, recreational and commercial development.

The availability of fill from the World Trade Center

site made it possible for the City to receive over 23 acres

of new upland area free of charge and the closeness of this

*The Lower Manhattan Plan, New York City Capital Project

ES-1 (1966).

4

area enabled the Port Authority expeditiously to dispose

of huge quantities of debris and excavation material.’

The landfill project was formally approved by the Board

of Estimate of the City of New York on June 22, 1967,

and the land created by the project has now been leased

by the City to the Battery Park City Authority for resi-

dential development. This public authority was created

by State statute in 1968 for the express purpose of re-

developing the ‘‘blighted area’’ north of Battery Park and

on and adjacent to the Hudson River which the Legislature

found was no longer ‘‘suitable or useful for piers or for

facilities appurtenant to the loading and unloading of com-

mercial cargo.’”” N.Y. Pub. Auth. Law 4§§ 1970-71

(McKinney’s 1968).

The same year, Congress acted to facilitate the finan-

ing of the Battery Park City project. This was accom-

plished by legislation declaring certain portions of the

Hudson River ‘‘non-navigable waters of the United States”

when ‘‘ bulkheaded and filled’. 33 U.S.C. § 59e-1.

The area mentioned in the 1968 Congressional statute

embraces the whole of the landfill project to which peti-

tioner objects. Indeed, the non-navigable portions of the

Hudson River are currently in the process of being expand-

ed. On January 25, 1972, a permit was issued to the

Battery Park City Authority pursuant to the above statute

for a further landfill development, extending beyond that

which is challenged here. The new project will make the

now completed landfill project, which is the subject of this

action, an inland area.

Petitioner’s brief in the Court of Appeals (Plaintiff-

Appellant’s Brief, p. 3) makes it clear that the primary

2 Journal of Proceedings of the Board of Estimate of the City

of New York, 1967, Vol. IV, p. 3781 (May 18, 1967).

3 Journal of Proceedings of the Board of Estimate of the City of

New York, 1967, Vol. V. pp. 4368-78.

5

reason for the institution of this suit was the landfill proj-

ect and the concommitant destruction of several City piers

on which members of petitioner’s union allegedly earned

their livelihood. The rambling complaint charges, and the

petition continues to allege, that the landfill project as well

as the elimination of the piers violate petitioner’s constitu-

tional rights to the use and benefit of waterfront property

and piers and the free use of navigable waters.

The complaint also sets forth objections to the World

Trade Center’s tax exempt status under both Federal and

State law, and questions the Port Authority’s financial obli-

gations regarding the Port Authority Trans-Hudson Rail-

road (PATH). Petitioner’s objections to the Trade Center

obviously arise from the fact that it was the construction of

the Center which made possible the landfill project and his

concern with PATH is most likely due to the fact that

it was authorized as part of the same legislation that

authorized the World Trade Center. N.Y. Unconsol. Laws

$6603 (McKinney’s 1962) ; N.J.S.A. 32:1-35.52 (1962).

Argument

The Port Authority of New York and New Jersey re-

spectfully submits that the petition for certiorari should

be denied since it presents no issue which, in any way, war-

rants consideration by this Court. The petition consists of

little more than a series of abstract statements of law with

absolutely no attempt being made to show their applicabil-

ity to the facts or cireumstances of this case. Tn addition,

the complaint itself is totally without merit and can, with-

out any exaggeration whatsoever, be described only as

frivolous. First, the landfill project, whose legality the

complaint challenges, is fully authorized by law. Its con-

struction has been approved not only by the Corps of En-

gineers but, in addition, by Congress. Second, the validity

of the World Trade Center, the other public project

which the complaint questions, has been upheld in many

prior law suits by both Federal and State courts, including,

most importantly, by this Court. And finally, in the lan-

guage of the District Court, petitioner’s ‘‘request for a

declaration concerning the obligations of the Port Au-

thority ‘to provide adequate financing for the continued

operation of the Port Authority Trans-Hudson system’

presents a non-justiciable issue; that is, there is no ‘actual

controversy’ of which the Court might assume jurisdic-

tion.’’ Petition, Appendix A-7.

The District Court rejected as ‘‘frivolous’’ petitioner’s

claim that all three defendants—the United States, the

Port Authority and the City—had violated petitioner’s

‘*Constitutional right to the use and benefit of waterfront

property and piers and the free use of navigable rivers.”

Petition, Appendix A-4. It could not have done otherwise

since there is no constitutional right to the commerical use

of waterfront property or piers.

As to petitioner’s claim that the Corps of Engineers had

illegally issued a permit for the landfill project, the District

Court ruled that the 1968 Congressional legislation, 33

U.S.C. § 59e-1, ‘had the effect of ratifying the issuance of

the permit and eliminating the question of its validity by

declaring the filled area to be ‘non-navigable waters within

the meaning of the laws of the United States’...’’* Peti-

tion, Appendix A-7.

* The landfill which is the subject of this action was placed in

the Hudson River in accordance with the terms of a permit validly

granted by the Corps of Engineers on December 21, 1966, pursuant

to $10 of the Rivers and Harbors Act of 1899, 33 U.S.C. $403:

see, Wisconsin v. Illinois, 278 U.S. 367. 412-13 (1929): United

States v. Republic Steel Corp.. 362 U.S. 482, 486-87 (1960).

The legislation to which the Court referred was re-

quested by the City and State of New York to facilitate

the financing of the Battery Park City development. It

was enacted after assurances had been given by the Corps

of Engineers that the landfill project would not only have

no adverse effect on navigation in New York harbor, but

would in fact aid navigation by reducing the amount of

floating debris resulting from the rotting and decaying

piers along the lower Manhattan waterfront. Hearings

on S. 3710 before Subcommittee on Rivers and Harbors and

Subcommittee on Flood Control of the Committee on

Public Works, House of Representatives, 90th Cong. 2d

Sess. at 633-41 (1968) ; see also statement of Congressman

Emanuel Celler, Jd. at 459-60. The full text of the 1968 Act

of Congress reads as follows:

‘‘Those portions of the East and Hudson Rivers

in New York County, State of New York, lying shore-

ward of a line within the United States Pierhead

Line as it exists on the date of enactment of this Act

[August 13, 1968], and bounded on the north by the

north side of Spring Street extended westerly and

the south side of Robert F. Wagner, Senior Place

extended easterly, are hereby declared to be non-

navigable waters of the United States within the

meaning of the laws of the United States. This

declaration shall apply only to portions of the above-

described area which are bulkheaded and filled.

Plans for bulkheading and filling shall be approved

by the Secretary of the Army, acting through the

Chief of Engineers, on the basis of engineering stud-

ies to determine the location and structural stability

of the bulkheading and filling in order to preserve

and maintain the remaining navigable waterway.

Local interests shall reimburse the Federal Govern-

ment for any engineering costs incurred under this

section.’’ 33 U.S.C. § 59e-1.

This statute makes it clear beyond doubt that the land-

fill project has Congressional approval. The Report of the

a ae oe ee eee eee — —

8

House Committee on Public Works fortifies this conclu-

sion. It states:

‘‘The purpose of this Section is to declare certain

areas of the East and Hudson Rivers, in New York

City, non-navigable, so as to permit the development

of a project planned by the State and the City of

New York to be built on filled lands.’’ H.R. Rep. No.

1709, 90th Cong., 2d Sess. at 59 (1968).

The report goes on to explain:

“‘This declaration of nonnavigability withdraws

the Federal Government’s right to order the struc-

tures removed for purposes of navigation under the

commerce clause of the Constitution without com-

pensation. This will remove a cloud on the title,

and permit local interests to make financial arrange-

ments for the development of the area for useful

purposes other than navigation.’’ Id.

Any conceivable question that petitioner could raise with

respect to the validity of the original 1966 permit for the

landfill project issued by the Corps of Engineers has been

put to rest not only by Congressional action expressly ap-

proving a landfill development in the Hudson River in the

very area in question but also by the subsequent action of

the Corps of Engineers in January, 1972, specifically

approving a new and much larger landfill project encom-

passing the entire landfill area which petitioner here ques-

tions. The original landfill development was constructed

by the Port Authority for the City of New York and has

now been incorporated into the new enlarged Battery Park

City landfill project presently underway in accordance with

the terms of the permit issued by the Corps of Engineers

pursuant to the 1968 statute.

Petitioner’s only contention as to this specifie Con-

gressional consent, which demolishes his claim of illegal

fill placement, is that he has been deprived of his constitu-

tional rights by the provisions of retroactive civil legisla-

tion. But, as we have seen, petitioner has no vested right

that can be impaired by any legislation whether or not

retroactive.

Moreover, if petitioner is arguing that Congress has no

power to sanction by subsequent act an alleged unlawful

structure in the navigable waters of the United States, this

argument was rejected over 100 years ago in Pennsylvania

v. Wheeling & Belmont Bridge Co., 18 How. 421 (1856).

There, this Court upheld the constitutionality of a Federal

statute declaring a bridge across the Ohio River at Wheel-

ing to be a lawful structure notwithstanding the fact that

four years earlier it had adjudged the very same bridge to

be an illegal obstruction to navigation in Pennsylvania v.

Wheeling & Belmont Bridge Co., 13 How. 518 (1852).

We respectfully submit therefore that petitioner’s alle-

gations with respect to the legality of the landfill project

and the removal of the piers fail to state a claim upon which

relief can be granted, and therefore does not warrant con-

sideration by this Court.

Petitioner also places in issue the validity of the tax-

exempt status of both the World Trade Center and the Port

Authority under Federal tax law. It is clear that juris-

diction over these allegations is lacking. The Federal

Declaratory Judgment Act, 28 U.S.C. § 2201, under which

petitioner claimed to be suing, expressly provides that a

declaratory judgment may not be made ‘‘with respect to

Federal taxes.’’ It is plain that ‘‘In this field the courts

have no jurisdiction to enter declaratory judgments.’’

Jolles Foundation, Inc. v. Moysey, 250 F.2d 166, 169 (2d

Cir. 1957).

The petition and complaint also raise the question of the

exemption of the World Trade Center from State taxation.

While Judge Bauman stated that ‘‘I choose to decline to

entertain that claim,’’ we respectfully point out that these

allegations also fail to state a claim upon which relief can

10

be granted. As the District Court’s opinion recognizes, a

number of suits attacking the World Trade Center had pre-

viously been brought and had uniformly been resolved in

favor of that project’s validity.®

Courtesy Sandwich Shop, Inc. v. Port of New York

Authority, 12 N.Y.2d 379, 190 N.E.2d 402, 240 N.Y.S.2d 1

(1963), appeal dismissed for want of a substantial Federal

question, 375 U.S. 78 (1963),®° rehearing denied, 375 US.

960 (1963), is a clear holding for the proposition that the

Trade Center constitutes a public use. There is certainly

nothing invalid about exempting from taxation publicly-

owned property devoted to a public use. An identical

contention was determined to be without merit in Bush

Termumal Co. v. City of New York, 282 N.Y. 306, 26 N.E.2d

269 (1940), a case involving the Port Authority’s first

5 In five previous law suits every objection to the Trade Center’s

validity has been found to be without merit.

1. Courtesy Sandwich Shop, Inc. v. Port of New York Authority,

12 N.Y.2d 379, 190 N.E.2d 402, 240 N.Y.S.2d 1 (1963),

appeal dismissed for want of a substantial Federal question,

375 U.S. 78 (1963), rehearing denied, 375 U.S. 960 (1963);

2. Matter of Port of New York Authority (World Trade

Center), 18 N.Y.2d 250, 219 N.E.2d 797, 273 N.Y.S.2d 337

(1966), certiorari denied sub nom. McInnes v. Port of New

York Authority, 385 U.S. 1006 (1967) ;

3. Port Authority Bondholders Protective Committee v. Port of

New York Authority, 387 F.2d 259 (2d Cir. 1967), aff’g 270

F. Supp. 947 (S.D.N.Y. 1967) ;

4. Merns, Inc. v. Department of Highways of City of New York.

N.Y.L.J. June 26, 1967, p. 15, cols. 7-8 (Sup. Ct., N.Y. Co.);

5. Wien v. Port of New York Authority, 23 N.Y.2d 668, 242

N.E.2d 746, 295 N.Y.S.2d 491 (1968), aff'y 29 A.D.2d 847,

288 N.Y.S.2d 592 (1st Dept. 1968), aff'g N.Y.L.J. August 4.

1967, p. 8, cols. 2-6 (Sup. Ct., N.Y. Co.).

* This Court’s action in dismissing an appeal for want of a sub-

stantial Federal question constitutes, of course, a decision on the

merits. See, Ohio ex rel. Eaton v. Price, 360 U.S. 246, 247 (1959).

11

inland freight terminal. There, Chief Judge Lehman, rely-

ing upon a decision by this Court, stated:

‘‘A municipality or agency of the State carrying

out a public purpose may at times compete with

private business. Those owning the private busi-

ness are not deprived of their right to the equal pro-

tection of the law, guaranteed by the Constitution of

the United States, because the private business is

subjected to a tax from which the State agency is

immune. (Puget Sound Power & Light Co. v. County

of King, 264 U.S. 22.)’’ 282 N.Y. at 322.

We emphasize, however, that while the Trade Center

is exempt from taxation, its authorizing legislation makes

express provision for substantial in lieu-of-tax payments

by the Port Authority to the City of New York, N.Y.

Unconsol. Laws § 6611 (McKinney’s 1962); N.J.S.A. 31:1-

35.60 (1962), and the Authority has, in fact, entered into

an in-lieu-of-tax agreement obligating it to make such pay-

ments.

Moreover, petitioner’s characterization of the Trade

Center as ‘‘a real estate business’’ adds nothing to the

argument. Similar unfounded characterizations were set

forth, without success, in the prior cases listed in footnote

5, supra.

Finally, petitioner makes two references in his com-

plaint to PATH. He correctly states that statutory

authorization for the Port Authority’s operation of the

railroad is contained in the same legislation which directs

it to construct the World Trade Center. Also, he asks the

court to declare ‘‘the obligations of the defendant, Tue

Port or New York Avutuority, to provide adequate financ-

ing for the continued operation of the Port Authority

Trans-Hudson system.’’ Not only do these allegations fail

to raise a Federal question but, as recognized by the Dis-

trict Court, they fail to present an ‘‘actual controversy,”’’

the absolute prerequisite for Federal Court jurisdiction

under Article III of the Constitution.

12

CONCLUSION

For the foregoing reasons it is respectfully sub.

mitted that the petition for a writ of certiorari should

be denied.

Respectfully submitted,

Patrick J. Fatvey

General Counsel of, and Attorney

for Respondent The Port Authority

of New York and New Jersey

Office and P. O. Address

111 Eighth Avenue

New York, New York 10011

Tel. 620-7380

On the Brief:

JOsEPH LESSER

Assistant General Counsel

and Chief, Opinions and

Appeals Division

IsopeL E. MurmHEeaD

Deputy Chief, Opinions and

Appeals Division

Raupx Satz

Attorney

New York, N. Y.

February 23, 1973

13

Proof of Service

I, Patrick J. Fatvey, a member of the Bar of the Su-

preme Court of the United States, and General Counsel of,

and attorney for, Respondent The Port Authority of New

York and New Jersey, hereby certify that on the 23rd day

of February, 1973, 1 served copies of the foregoing brief on

counsel for Petitioner and Counsel for the other Respond-

ents, by mailing three copies thereof in a duly addressed

envelope, with air mail postage prepaid, to each of the fol-

lowing in this cause:

Jacos Rassner, Esa.

Counsel for Petitioner

15 Park Row

New York, N.Y. 10038

Erwin N. Griswoip, Esq.

Solicitor General of the United States

Counsel for Respondent United States

Department of Justice

Washington, D.C. 20530

Norman Repuica, Esq.

Corporation Counsel of the City of New York

Counsel for Respondent City of New York

Municipal Building

Centre and Chambers Streets

New York, N.Y. 10007

/s/ Patrick J. Fatvey

Patrick J. Fatvey