Petition for Writ of Certiorari — New York Coastal Partnership, Inc. v. Department of the Interior

Gatchel, Informational and Procedural Standing

after Lujan v. Defenders of Wildlife,

11 J. LAND USE & ENVTL. L. 75 (1995)

Zaller, The Case for Strict Construction of

Mandatory Agency Deadlines under Section

706(1), 42 WM. & MARY L. REv. 1545 (2001)

OPINIONS BELOW

The decision of the Second Circuit, reported at 341 F.3d 112

(2d Cir. 2003), is reprinted in the Appendix at la. The district

court opinion is unreported and is reprinted at 10a. The order

denying rehearing and rehearing en banc may be found at 23a.

JURISDICTION

The Court of Appeals entered its judgmert denying

rehearing on January 14, 2005. Justice Ginsburg entered an

order extending the time to file to May 31, 2005. This Court’s

jurisdiction is invoked pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

Section 342 of Pub. L. 106-53, the Water Resources

Development Act of 1999 (“WRDA 99”), states:

The project for a combined beach erosion control and

hurricane protection, Fire Island Inlet to Montauk Point,

Long Island, New York * * * is further modified to direct

the Secretary, in coordination with the heads of other

Federal departments and agencies, to complete ll

procedures and reviews expeditiously and to adopt and

submit to Congress, not later than 120 days after the date of

enactment of this Act, a mutually acceptable shore erosion

plan for the Fire Island Inlet to Moriches Inlet reach of the

project.

In relevant part, 16 U.S.C. § 459e-1(e) states:

The Secretary shall not acquire any privately owned

improved property or interests therein within the boundaries

of the seashore * * * except beach or waters and adjoining

land * * * which the Secretary determines are needed for

public access to the beach, without the consent of the

owners.

Relevant portions of the other constitutional and statutory

provisions involved are reproduced in the Appendix, beginning

at 24a.

STATEMENT

This case concerns the fate of Fire Island, the narrow, 32-

mile barrier island off the south shore of Long Island, New

York, the protection and conservation of which Congress has

entrusted to the Department of the Interior (DOJ) and the Army

Corps of Engineers (Corps), see 16 U.S.C. § 459e-7(a).

In affirming dismissal of this suit brought by Petitioners,

Fire Island property owners, individuals who visit the Island for

educational and recreational purposes, and residents of low-

lying Long Island areas who depend on Fire Island for protection

against flooding, to compel Respondents to take perform

specific congressionally-prescribed steps to address Fire Island’s

shore erosion cris, the Second Circuit committed two important

legal errors that warrant this Court’s review.

First, it held that federal courts are without Article I

jurisdiction over actions seeking to compel agencies to perform

congressionally-mandated processes, see 5 U.S.C. § 706(1),

brought by a party whose concrete interests the statute was

intended to protect, unless the plaintiffs can further show that

compliance with the law will “likely” result in an ultimate

benefit to them. That conclusion is contrary to this Court’s

decision in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)

(“Lujan”},-and to those of numerous Courts of Appeals, which

have upheld standing (and compelled agency action) in cases

where the Second Circuit’s requirement could not be satisfied.

Review is additionally warranted, because the error led the court

to refuse jurisdiction in circumstances in which the necessity of

judicial intervention has long historically recognized and had the

effect of rewarding long-running, blatant agency defiance of a

congressional judgment that immediate safety-protection

measures were required.

The Second Circuit’s decision also raises an important,

inconsistently addressed question concerning the Takings

Clause: whether, as broad statements in opinions of this Court

have been taken to indicate, federal district courts are without

3

power to entertain claims for declaratory and injunctive relief

based upon the Clause, or whether, consistently with the

holdings in other of the Court’s cases, a different, less

categorical principle governs?

A. Factual Background

1. The Fire Island Barrier. Fire Island is located

approximately 50 miles east of New York City, bounded by the

Moriches Inlet to the east, the Atlantic Ocean to the south, and

the Great South Bay and Moriches Bay to the north. (JA A44).

Approximately 80 percent of Fire Island's area is park land,

and all its ocean beaches are open to the public. The largest

park on Fire Island is the Fire Island National Seashore (the

“Seashore” or “FINS”), which extends from the eastern

boundary of Robert Moses State Park to Moriches Inlet. Fire

Island’s 17 residential communities and all the other Fire Island

parks are maintained as private or municipal facilities within the

boundaries of the Seashore.

Fire Island’s communities, located in a twelve-mile section

of the Island, comprise approximately 3,850 residences and

businesses that are used and patronized primarily in summer.

Though Fire Island is only home to some 400 year-round

residents, its summer weekend population can reach 25,000, and

visitors to the parks and communities number in the millions

annually. (JA44-45).

2. National Seashore Legislation. Fire Island remained

substantially undeveloped until bridges connected it to the

mainland in the 1950s, whereupon the pace of development

accelerated. (JA46).

a. In 1964, Congress enacted the Fire Island National

Seashore Act (“FINSA”), Pub. L. 88-587, 16 U.S.C. § 459e, er

seq., largely in reaction to a proposal to build a road connecting

the Robert Moses and Smith Point bridges. That plan was

rejected, and Fire Island remains the only developed barrier

island without a formal road system. (JA46). FINSA directs the

Secretary of Interior to “administer and protect the Fire Island

4

National Seashore with the primary aim of conserving the

natural resources located there,” Jd. § 459e-6(a).'

Citing as a model the Cape Cod National Seashore - which

also contains significant private holdings - Congress expressly

affirmed that the Seashore’s recreational and ecological

purposes were compatible with continued residential use. As

members of the enacting Congress attested, establishment of the

Seashore was accomplished with the strong support of Fire

Island residents, many of whom made substantial grants of

property, with the aim of preserving the Island’s open,

undeveloped character, and FINSA includes a provision, 16

U.S.C. § 459e-1(e), disabling the National Park Service from

acquiring improved property without the owner’s consent.

3. Storms and Beach Erosion. As a barrier island, Fire

Island stands directly exposed to unpredictable, often violent

coastal storms. The Island’s beaches and sand dunes play a

critical role in protecting low-lying areas on Long Island’s

southern shore against storm damage and flooding.

Historically, the need to replace sand lost through storms and

erosion has been met in two ways: through “littoral drift,” the

natural process by which alongshore waves transport and deposit

sand on beaches that have been depleted, and — where damage

or the risk of breach has been severe — through targeted beach

nourishment projects, which replenish sand (JA5O).

Thus, after a March 1962 nor’easter (“the Ash Wednesday

Storm”) destroyed 47 houses and damaged 75 others, the Army

Corps, with the cooperation of New York State, responded with

‘Congress's declared purpose was “conserving and preserving for the use

of future generations certain relatively unspoiled and undeveloped beaches,

dunes and other natural features within Suffolk County, New York which

possess high values to the Nation as examples of unspoiled areas of great

natural beauty in close proximity to large concentrations of urban

population.” 16 U.S.C. § 459e(a). In 1980, Congress enacted the Fire Island

Wilderness Act, Pub. L. 96-585, designating a 1,383-acre section of the

Island as the “Fire Island Wilderness Area.” See 16 U.S.C. § 1132.

5

a project that replaced 1.1 million cubic yards of sand along 8.5

miles of shoreline and raised beaches to an elevation of 12 feet

above mean low water. Some 9,500 feet of dune and 37,000

feet of eroded beach were quickly restored. (JA53).

FINSA confirmed the continued authority of the Army

Corps to “undertake erosion control or beach protection

measures in the area,” 16 U.S.C. § 459e-7(a). See also Pub. L.

96-585(c) (“wilderness designation shall not preclude the repair

of breaches that occur in the wilderness area, in order to prevent

the loss of life, flooding and other severe economic and physical

damage to the Great South Bay and surrounding areas’’).

In fact, Congress addressed Fire Island beach erosion even

before FINSA’s enactment, when it passed legislation

authorizing the Fire Island Inlet to Montauk Point New York

Combined Beach Erosion Control and Hurricane Protection

Project, Pub. L. No. 86-645 - a project that, as modified and

reoriented in subsequent years, looms prominent in this case.

4. Interference With The Littoral Drift. In great measure,

Fire Island’s shore erosion problems are not the result of

“nature taking its course.” For decades, federal and State

authorities have engaged in activity that has seriously impaired

Fire Island’s primary protection against beach erosion: littoral

drift. Beginning in the 1960s, they built a series of protruding

stone structures, known as “groins,” to the east of Fire Island,

which have the effect of trapping sand that would otherwise

make its way to Fire Island. This massive project was

constructed and maintained in derogation of basic engineering

principles, in a manner that maximized the sand deprivation and

resulting storm damage suffered by Fire Island and other

downdrift areas. (JA51).

This reality was recognized in the Park Service’s 1978

General Management Plan for the Fire Island Seashore, which

acknowledges that “[i]nterruption of [littoral] drift has played a

major role in the acceleration of erosion of Fire Island’s

beaches,” and that “Fire Island is a culturally manipulated

6

barrier island system, and it cannot be managed as if natural

geomorphic processes had been totally unimpeded.” (JA256-60).

5. The Recent Background

a. The 1990s Storms. Although the winters of the late 1970s

and 1980s were atypically mild, the ill effects of Respondents’

actions were felt with full force between 1991 and 1996, when

weather returned to less serene norms, and waves pounded

against a beach long deprived of its natural complement of sand.

This series of storms destroyed approximately 90 properties and

caused over one billion dollars in damage to FINS, State,

County and Municipal properties. (JA53).

Following the storms of 1992-93, New York State requested

that the Corps survey the State’s Atlantic coastline and

recommend actions the State (in cooperation with the Corps)

could take to maintain the integrity of the Fire Island barrier and

its capacity to protect the South Shore. That survey, conducted

in conjunction with the State Environmental Conservation

Department (NYSDEC), recommended prompt modification of

the Westhampton groin field; implementation of a Breach

Contingency Plan; sand bypassing at south shore inlets; and

sand nourishment projects where needed, including on Fire

Island. (JA54-55).

b. FIP and the Reformulation Study. In 1994, the Corps -

also at the State’s request - conceived, designed and formulated

the Fire Island Interim Storm Damage Protection Project (later

known as “FIIP”’), to serve as a “bridge” to what was expected

to be a more permanent and comprehensive solution, a project

referred to as the Fire Island Inlet to Montauk Point (FIMP)

Reformulation Study, or the “Reformulation Study.”

That Study traces its origins to the project first authorized in

1960, see supra. Because of the massive scale and scientific and

bureaucratic complexity of the undertaking, the project has

progressed at a glacial pace; review processes that were

scheduled to be complete in 2004, see Pet.App.21a, remain

unfinished, and it is widely understood that actual construction

of projects under the Fire Island-to-Montauk plan will occur

many more years in the future. (JA54).

The declared purpose of the more narrowly-targeted FIP

was to “alleviate conditions conducive to storm damage * * * by

providing temporary storm damage protection” to the Fire Island

reach while the long-term Reformulation Study is being

conducted, JA151-55 (DEIS).

c. Interior Department Resistence. The history of the FIIP

has been one of the Corps’s scaling back the project in order to

win the assent of the Department of the Interior, followed by

fresh demands and objections from that agency. Between 1995

and 1996, DOI sent the Corps hundreds of pages of “comments”

critical of the project; the Corps, in an effort to secure

cooperation for some means of adding desperately needed sand

to the littoral system, acceded to almost all these demands.

Thus, the project’s scope was changed from a 30-year.

undertaking with six renourishment cycles to a six-year project

with one renourishment cycle; the relationship between the FIP

and the Reformulation Study was redefined, to confirm the

FIIP’s interim character; and the extent and location of sand

placement was altered, with sand placement and dune

construction focused on developed areas and kept to a minimum

in areas of major federal land holdings. (JA156).

These modifications did not prompt reciprocal concessions.

On the contrary, the Interior Department's assent was always

held slightly beyond reach, and the Seashore’s then-

Superintendent took an adversarial stance toward residents of

the communities, indicating sympathy with the notion that

improved properties were part of the problem: that erosion. by

making the homes more vulnerable to destruction, was, for that

reason, a benign force; and that erosion control measures, by

“interfering” with this dynamic, were undesirable. (JA58).°

? In 2000, the Superintendent was honored with a $2,500 cash award

from a private group, in recognition of his “battle” against the Corps’s shore

stabilization project. See Pet.App.50a.

8

Between 1996 and 1998, the agencies received a series of

letters from Petitioners’ congressional representatives,

expressing concern about worsening conditions on Fire Island

and frustration with the agencies’ failure to act, and urging that

they resolve their remaining differences and move forward with

the FUP. See, e.g., Pet.App.33a.

d. The 1999 Legislation and the Agencies’ Defiance. In

August 1999, Congress enacted, and the President signed into

law § 342, “direct{ing]” the agencies to complete all necessary

reviews and procedures and to adopt and submit to Congress an

interim Fire-Island-specific shore erosion plan within 120 days.

Although it soon became evident that Respondents would

not meet the statute’s deadline, the Corps made initial efforts to

discharge its responsibilities under § 342, issuing a Draft

Environmental Impact Statement (EIS) for the FIP in December

1999, scheduling public hearings for the following month, and

declaring its intent to issue a NEPA Record of Decision a few

months after that. In a December 17, 1999 letter to

congressional leaders, the Corps sounded an optimistic note,

acknowledging that “challenging issues remain[ed] unresolved,”

between the two federal agencies, but expressing “hope[] that a

mutually acceptable solution w[ould] emerge” in the coming

months. Pet.App.35a.

At the January 2000 hearing, the Draft EIS received strong

endorsement from Fire Island residents and businesses in the

South Shore flood zone, and the U.S. EPA rated the project as

LO-1, indicating its determination that “the project will not

result in significant adverse [inc]remental impacts” and that

EPA did “not object to its implementation.” (JA502-03). The

New York DEC likewise notified the Corps that it was favorably

inclined toward the project. (JA519-20).

Despite the evident willingness of the other participants to

proceed - and the statutory mandate to cooperate and adopt a

plan, DOI continued to resist. The agencies never completed the

reviews under way in 1999. They have never adopted (nor

9

submitted to Congress) any “mutually acceptable shore erosion

plan.” Indeed, they made plain to the courts below that FUP was

not “mutually acceptable,” Pet.App. 40a, 42a, and that they have

decided to address Fire Island’s problems exclusively in the

context of the omnibus FIMP. See, e.g., Pet.App.46a.

f. Emergency Conditions. While this protracted campaign

of bureaucratic resistance has continued, the dangers facing Fire

Island — and Long Island — have not abated. Although the Island

has been spared major storms in recent years (and DOI has

reversed its previous refusal to permit residents to pursue even

self-financed, emergency nourishment projects in their own

communities), the beaches and dunes in parts of Fire Island are

so severely eroded that, in the absence of “emergency protective

measuies,” even a “moderate storm event{]” could cause in

millions of dollars in storm and flood damage to property and

incalculable ecological harm (JA535-42), and the Corps’s DEIS

found a real possibility of a breach through Fire Island, which

would have devastating consequences for the Island and the

South Shore mainland alike, see JA155.

B. Proceedings Below

In May 2001, Petitioners filed this suit against the various

authorities responsible for Fire Island’s erosion crisis. Its

primary thrust is that Respondents’ failure take remedial and

protective action violated both the specific mandates of

WRDASQY9 and their general duties, under FINSA and other

federal and State laws, to conserve and protect Fire Island. The

complaint asserted that the property damage caused by the sand-

pirating groin field was a “de facto taking,” and, with respect to

properties subject to the congressionally-conferred immunity

from condemnation, an unconstitutional one.

1. The District Court Decision. The district court dismissed

*The complaint was later amended to include claims that Respondents

were responsible for the loss and degradation of the habitat of a threatened

bird species, the piping plover, in violation of the Endangered Species Act.

10

al] Petitioners’ claims, giving a variety of reasons why

Petitioners’ statutory and APA claims were not

“viable,”Pet.App.17a.* The court also ruled that the complaint

failed to state a takings claim on which relief could be granted.

“Because the Fifth Amendment does not proscribe the ‘taking of

property’ in all respects,” the court reasoned, only those

‘without just compensation’” - and because Petitioners had

“chosen not to avail themselves” of procedures for obtaining

compensation - they could not “seek injunctive relief,” /d. 13a.

The district court decision raised no question as to

Petitioners’ standing to sue, nor did it include any independent

discussion of the APA/Section 342 claim.

2. The Second Circuit Decision. The court of appeals

affirmed the judgment, ruling on jurisdictional grounds

exclusively, i.e., “on the basis that [Petitioners] do not have

standing to bring this suit.” Pet.App.2a. After assuming for

decisional purposes that Petitioners would satisfy the injury-in-

fact prong of Article III standing, id. n.1, the panel held that

dismissal was required under the redressability prong “because

[Petitioners] can only speculate whether the remedy they seek

would redress their purported injuries,” Pet.App.Sa.

Stating that “no statutory authority * * * would specifically

require [Respondents] to adopt the FIIP,” the court opined

(Pet.App.Sa-6a) that:

Despite [Petitioners’] optimism, there is no indication that

the FIIP would, in fact, remedy Fire Island's erosion

problems. Moreover. we recognize that the FIIP is merely

*The court ruled: (1) that the refusal to act was “presumed immune from

judicial review’ under * * * the APA.” Pet.App.19a (quoting Heckler v

Chaney, 470 U.S. 821 (1985)); (2) that claims that FINSA had been violated

were “precluded from judicial review” because that statute invests DOI with

“discretion as to the best manner to” protect the shoreline (Pet.App. 19a); and

(3) that, because “FIIP was envisioned as only a temporary remedial measure

[and] a subset of the Reformulation Study,” Respondents’ refusal to

implement it was not “final agency action” Pet.App.2 la.

1]

an interim plan spanning a five-year period. Accordingly,

even were the FIIP successful, at best, it would be

terminated and shortly replaced by another program whose

chances of success are only speculative at this point in time.

The court then held Petitioners lacked standing to bring a

FINSA claim, reasoning that that statute, which speaks in

“general” terms and “afford[s] [Respondents] considerable

discretion in exercising their authority to remedy shore erosion

on Fire Island,” imposes no duty “that would require

[Respondents] to act in a manner that would likely redress the

injury of which [Petitioners] complain.” Pet.App.6a-7a.

The decision then explained that Petitioners lacked Article

[I] standing to seek court-ordered compliance with Section 342.

See 5 U.S.C. § 706(1). Acknowledging that the provision

“contains express provisions for specific action,” Pet.App.8a,

the court reasoned that the “redressability” prong was not

Satisfied, because Petitioners could not establish that

“enforcement of this provision is likely to remedy Fire Island’s

shore erosion problem,” id. The decision continued:

The Water Resources Development Act does not require the

adoption of any specific plan. Nor does the act mandate that

defendants-appellees adopt and submit to Congress a

successful shore erosion plan. While the plan must be

“mutually acceptable,” by the act's plain language, this term

means only that it must be acceptable to the Secretary of the

Army and “the heads of other Federal departments and

agencies.” The plan need not be acceptable to

plaintiffs-appellants. Thus, compliance with the Water

Resources Development Act would not necessarily make it

likely that any plan adopted and submitted to Congress

would remedy Fire Island’s shore erosion problem.

Pet.App.8a (emphasis in original).

The decision concluded by observing that its ruling did not

necessarily leave Petitioners without a “remedy for their

purported injuries.” Pet.App.9a, citing the possibility that

12

property-owning Petitioners might yet be awarded “just

compensation” — in the event that their property were to be

destroyed (and a future judicial proceeding determined that the

deprivation was a compensable Taking). At the same time,

however, the court affirmed that the district court lacked

jurisdiction over Petitioners’ claims for equitable relief under

the Takings Clause, noting that “taking claims against the

Federal Government are premature until the property owner has

availed itself of the process provided by the Tucker Act,”

Pet.App.9a n.3 (quoting Preseault v. ICC, 494 U.S. 1, 11 (1990)

(citations omitted)), and asserting that Petitioners had not

established that “‘a remedy at law is, in fact, ‘inadequate,’”’ id.

REASONS FOR GRANTING THE PETITION

At the heart of this suit is an effort to compel “discrete

agency action that [Respondents are] required to take,’ Norton

v. Southern Utah Wilderness Alliance (“SUWA’), 124 S. Ct.

2373, 2379 (2004), brought by parties whose concrete,

particularized and legally cognizable interests are at risk of

imminent injury, and whose interests Congress manifestly

sought to protect when it enacted § 342.

Section 342 could not be more explicit, specific, or

mandatory. It “modified” the existing legislation to make clear

that Fire Island’s immediate problems should not await the

adoption of the permanent, omnibus FIMP, and “direct[ed]” the

Respondent agencies to (1) complete all necessary reviews and

procedures and (2) to agree on, adopt, and submit to Congress

an interim Fire-Island-specific shore erosion plan within 120

days of its (1999) enactment.

Likewise, Respondents’ default could scarcely be any more

clear-cut. They did not complete the “reviews” contemplated by

the statute; they did not adopt a mutually acceptable plan within

120 days, nor have they since. Their stated grounds for refusing

to comply — inability to agree and a “decision” to address Fire

Island’s problems exclusively in the context of FIMP — are

precisely what Congress ruled out.

13

Rather than compel the agencies to end this protracted.

unlawful defiance — and take up their legal duties to provide Fire

Island with urgently needed protections, the Second Circuit

effectively ratified it and assured it will continue, on the ground

that the asserted “redressability” defect precluded federal court

jurisdiction over Petitioners’ APA suit.

In addition to its practical importance to the many people

who value Fire Island and depend on it for protection, this

decision warrants the Court’s review because the grounds for

dismissal — conditioning suits to compel agencies to follow

congressionally-mandated processes on plaintiffs’ showing that

performance of those procedures would “likely” afford them

substantive relief — are broadly significant. Countless federal

statutes mandate that agencies take actions — such as conducting

environmental impact studies, consulting with other agencies,

adopting plans, or promulgating regulations by a date certain -

that are designed to provide protection for important affected

interests, but whose effect on the ultimate outcome in any

particular instance is, often by definition, uncertain.

The majority of the Courts of Appeals have correctly — but

in conflict to the Second Circuit below — understood this Court’s

decision in Lujan to confirm that such suits are within their

Article I jurisdiction, so long as plaintiffs show they are among

the class whose concrete interests the legislatively-mandated

measures were intended to protect. Although few other courts

have departed as far from this understanding as did the decision

below, a pattern of inconsistent decisions attests to the need for

more definitive guidance than the two Lujan footnotes provided.

The Second Circuit’s error is especially worthy of review

and correction because of the context in which occurred. The

court held jurisdiction unavailable under circumstances in which

the law has long recognized judicial intervention to be not only

appropriate, but necessary: to compel agency action that

Congress determined is immediately required to safeguard

public safety, property, and ecology.

14

The Court should also grant review to settle a question that

the plurality opinion in Eastern Enterprises v. Apfel, 524 U.S.

498 (1998), recognized to be an ongoing source of uncertainty

and conflict in the lower federal courts (but one that five Justices

in Apfel did not address): under what circumstances should a

federal court entertain a suit for equitable, prospective relief

under the Takings Clause? This case, in which Petitioners

compellingly claim that Congress could not have intended to

relegate them to post-deprivation damages, affords an

opportunity for the full Court to make explicit that broad

statements in its opinions should not be understood as imposing

a categorical bar to awarding such reiief.

I. This Court Should Grant Review to Clarify The Nature of

The Redressability Requirement In Cases Where A

Concretely-Affected Party Sues To Compel Performance of

An Agency Process Intended For His Benefit

The feature that the Second Circuit identified as precluding

federal court jurisdiction over Petitioners’ APA/WRDA99 claim

is, in fact, common to a wide array of important federal statutes.

By definition, a plaintiff seeking to enforce a mandate that an

agency promulgate regulations by a fixed date, e.g., In re

Bluewater Network, 234 F.3d 1305 (D.C. Cir. 2000) (Oil

Pollution Act), cannot show that the as-yet unadopted rules will

necessarily benefit him.’ A court asked to compel the conduct

of studies mandated under NEPA and other statutes requiring

analysis and comparison of alternatives, see, e.g., Catron County

Bd. of Commrs. v. U.S. Fish & Wildlife Serv., 75 F.3d 1429,

1433 (i0th Cir.1996): or consultations required by the ESA,

Sierra Club v. Glickman, 156 F.3d 606 (Sth Cir. 1998), cannot

determine that performing those steps will in fact alter outcomes

‘See also, e.g., Forest Guardians v. Babbitt, 174 F.3d 1178, 1192-93

(10th Cir. 1999) (Endangered Species Act); Kansas Natural Resource

Council, Inc. vy. Whitman, 255 F.Supp.2d 1208, 1217 (D. Kan. 2003) (Clean

Water Act); Natural Resources Defense Council, Inc. v. EPA., 797 F. Supp.

194 (E.D.N.Y. 1992) (Clean Air Act).

in ways that avert harm to individuals whose interests those

statutes are intended to protect.®

The Second Circuit’s redressability requirement would

defeat standing in almost all such cases, contravening settled

principles of administrative law, and effectively nullifying

congressional determinations (1) that the mandated procedures

provide necessary and real protection for important interests,

and (2) that whether or not to perform them was not a decision

to be left to agency discretion.

The Court should make explicit what the majority of Circuit

Courts have understood Lujan to have recognized: that proof of

likely, ultimate substantive relief is not a part of plaintiffs’

burden to establish Article II standing 1n such cases.

A. The Second Circuit Adopted A Redressability Requirement

Foreclosed By the Decisions of this Court and In Conflict

With The Decisions of Other Courts of Appeals

Lujan considered when suits seeking to require agency

performance of congressionally-mandated processes are within

federal courts’ Article If] jurisdiction. The Court held that

plaintiffs in that case, who were found not to have shown a

concrete, personal stake in the performance of the ESA

consultation requirements they sought to compel, lacked

standing, rejecting arguments that the statutory violation could

“by itself” satisfy the injury-in-fact requirement — i.e., “without

any showing that the procedural violation endangers a concrete

interest of the plaintiff.” 504 U.S. at 573 n.8.’

* E.g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402

(1971) (agency findings under Section 4(f) of the Department of

Transportation Act); /n re American Rivers & Idaho Rivers United, 372 F.3d

413, 420 (D.C. Cir. 2004) (FERC determinations in licensing hydropower

dam); Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1062 (9th

Cir. 2002) (review of timber sale under National Forest Management Act),

N. W. Mining Ass'n v. Babbitt, 5 F. Supp. 2d 9, 14-15 (D.D C. 1998)

(analysis of impacts of small businesses under Regulatory Flexibility Act).

” Significantly, Lujan which came to the Court on a summary judgment

16

In two lengthy footnotes, the Court explained the limits of

this holding, indicating that Article I would not preclude a

similar suit (1) if brought by a party with a legally cognizable

injury (2) to compel agency performance of a process

“[{]connected to [her] own concrete harm,” 504 U.S. at 573 n.8,

explaining:

There is this much truth to the assertion that “procedural

rights” are special: The person who has been accorded a

procedural right to protect his concrete interests can assert

that right without meeting all the normal standards for

redressability and immediacy. Thus, under our case law,

one living adjacent to the site for proposed construction of

a federally licensed dam has standing to challenge the

licensing agency’s failure to prepare an environmental

impact statement, even though he cannot establish with any

certainty that the statement will cause the license to be

withheld or altered, and even though the dam will not be

completed for many years.

Id. at 572 n.7.

In cases brought by a party with a personal interest, Lujan

explained, agency obligations could “assuredly” be enforced.

“so long as the procedures in question are designed to protect

some threatened concrete interest of [plaintiff's] that is the

ultimate basis of his standing.” Id. at 573 n.8 (emphasis

supplied). Thus, the Court described the presence of Article Hl

standing in Robertson v. Methow Valley Citizens Council, 490

U.S. 332 (1989), as essentially self-evident, because “plaintiff

was a citizens’ council for the area in which the challenged

action was to occur, so that its members would obviously be

record, emphasized that a court deciding standing on a motion to dismiss

must “‘presum{e] that general allegations [of the complaint] embrace those

specific facts that are necessary to support the claim,” 504 U.S. at 561

(quoting Lujan v. Nat'l Wildlife Found., 497 U.S. 871, 889 (1990)); accord

Bennett v. Spear, 520 U.S. 154, 168 (1997) . The Second Circuit's decision

did not acknowledge this rule.

17

concretely affected,” 504 U.S. at 573 n.8 — even though the

provision the plaintiff sought to enforce “does not mandate

particular results, but simply prescribes the necessary process,”

Methow Valley Citizens Council, 490 U.S. at 350-51.

Federal Election Comm'n v. Akins, 524 U.S. 11 (1998), gave

further reasons why redressability is not defeated by the

possibility (or even probability) that a plaintiff seeking review

of agency action may not ultimately obtain substantive relief.

Rejecting the FEC’s argument that its lawful power to withhold

the information the denial of which supplied plaintiffs’ injury-

in-fact, was fatal to Article [I jurisdiction, the Court explained:

Those adversely affected by a discretionary agency decision

generally have standing to complain that the agency based

its decision upon an improper legal ground. See, e.g., Abbott

Laboratories v. Gardner, 387 U.S. 136, 140 (1967)

(discussing presumption of reviewability of agency action):

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

402,410(1971). If areviewing court agrees that the agency

misinterpreted the law, it will set aside the agency's action

and remand the case — even though the agency (like a new

jury after a mistrial) might later, in the exercise of its lawful

discretion, reach the same result for a different reason. SEC

v. Chenery Corp., 318 U.S. 80 (1943). Thus respondents’

“injury in fact” is “fairly traceable” to the FEC’s decision

not to issue its complaint, even though the FEC might reach

the same result exercising its discretionary powers lawfully.

For similar reasons, the courts in this case can “redress”

respondents’ “injury in fact.”

Id. at 525; accord Bennett, 520 U.S. at 174 (“It is rudimentary

administrative law that discretion as to the substance of the

ultimate decision does not confer discretion to ignore the

required procedures of decision making”).

These principles establish the Second Circuit’s fundamental

error in this case. Petitioners — who include individuals who

own homes on Fire Island, who regularly visit its beaches and

18

perform scientific research there, and who depend on Fire Island

for protection from storms and flooding (JA23-39) — obviously

have a concrete and particularized interest, “(apart from [an]

interest in having the procedure observed), 504 U.S. at 573 n.8.

Far from seeking to enforce statutory requirements toward

which they stand in the same position as the public as a whole,

United States v. Richardson, 418 U.S. 166 (1974), Petitioners

are in the relatively small subset of the public who have any

interest in the subject of Fire Island shore erosion. See Society

Hill Towers Owners’ Ass’n v. Rendell, 210 F.3d 168, 176 (3d

Cir. 2000) (“If the Residents do not have standing to protect the

historic and environmental quality of their neighborhood, it is

hard to imagine that anyone would have standing”).

Nor can there be any question that the steps set forth in

Section 342 were “designed to protect * * * [the] threatened

concrete interest * * * that is the ultimate basis of [Petitioners’]

standing,” Lujan, 504 U.S. at 573 n.8; see Glickman, 156 F.3d at

613 n.4 (finding standing, after determining “that the procedures

in question were designed to protect [environmental group’s]

threatened concrete interest in this case”). It takes no inferential

leap to recognize that individuals whose property, recreational,

scientific and ecological interests are seriously threatened by

Fire Island shore erosion stand to be protected by adoption of a

“shore erosion plan” for Fire Island; indeed, the interests of

Petitioners, whose representatives in Congress championed

§ 342 (at the behest of Petitioners and their neighbors) stand

closer to the core of that provision’s concern, Bennett, 520 U.S.

at 166, 177, than the “adjacent landowner” NEPA plaintiffs

whose standing Lujan unreservedly endorsed. Cf. Nat’! Credit

Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479,

492 (1998) (APA standing not limited to those whom provision

was “specifically intended to benefit’) (emphasis added).®

°8Cf. Rosebud Sioux Tribe v. McDivitt, 286 F.3d 1031 (8th Cir. 2002)

(under Lujan, plaintiff “must still show that its concrete interests, which

underlie the procedural right. fal] within the zone of interests the statutes are

19

The Second Circuit’s rule, that “redressability” further

required Petitioners to show that the agencies’ performing

measures enacted to protect their interests would “likely” result

in a “successful” shore erosion plan — or one “acceptable” to

Petitioners, see 8a — is directly contrary to the principles

affirmed in Lujan. The Court there expressly recognized that a

plaintiff has standing to compel an agency to perform a

mandated process “even though he cannot establish with any

certainty” that the measure will result in his ultimately being

spared injury, 504 U.S. at 572 n.7.

As other courts have recognized, few, if any, procedural

obligation cases could go forward if the plaintiffs’ standing

depended on showing that the outcome will “likely” be a

“success,” in the ultimate sense contemplated by the Second

Circuit’s decision. Environmental interests are often harmed

after compliance with NEPA, see Methow Valley Citizens

Council; Cantrell v. City of Long Beach, 241 F.3d 674, 682 (9th

Cir.2001) (redressability does not require birdwatcher plaintiffs

to “show that the revised EJS would result” in adoption of the

most environmentally sound alternative). Consultations

mandated under the ESA do not always yield concrete results,

see Glickman, 156 F.3d at 615 & n.5; Lujan, 504 U.S. at 572 n.7

(noting nonreliance on Government’s argument that

redressability was lacking because “even if the other agencies

were obliged to consult with the Secretary, they might not have

followed his advice’) (emphasis in original). Mineworkers

seeking to compel promulgation of safety regulations, see, e.g.,

In re United Mine Workers, 190 F.3d 545 (D.C. Cir. 1999),

cannot readily show that the regulations the agency would have

issued would have been effective.

Nor do this Court’s decisions support the suggestion that

Petitioners’ standing should depend on a showing that the plan

the agencies would adopt (if they complied with the law) would

designed to protect’).

20

be “‘acceptable” to Petitioners. As a legal matter, whatever

discretion Respondents retain to adopt a plan that is not

‘‘acceptable” to every Fire Island stakeholder does not include

authority to adopt no plan at all: “Administrative agencies do

not possess the discretion to avoid discharging the duties that

Congress intended them to perform.” Marathon Oil Co. v.

Lujan, 937 F.2d 498, 500 (10th Cir. 1991). And common sense

says that individuals whose interests are imminently threatened

by shore erosion will find any agency-endorsed emergency plan

more “acceptable” than none at all. See also Bennett, 520 U.S.

at 168 (upholding standing of individual water user based on

allegation of reduction in amount of water available overall).”

Courts have recognized the serious unfaimmess of allowing an

agency to exploit uncertainty about the content or efficacy about

what it “would have done” to defeat a suit seeking to bring

unlawful nonfeasance to an end. See Committee to Save the Rio

Hondo v. Lucero, 102 F.3d 445, 448 (10th Cir.1996) (plaintiff

should not be required to produce an EIS to have standing to

compel an agency to perform one); cf. Hercules v. EPA, 938

F.2d 276, 281 (D.C. Cir. 1991) (agency’s actions as of statutory

deadline are “deemed the agency’s ‘complete response’” to

statutory requirements’’’) (quoting Colorado v. Dep’t of Interior,

880 F.2d 481, 485 (D.C. Cir. 1989))."°

%As a matter of practical reality, Congress did not impose the § 342 plan

adoption duty in the abstract. It did so in the context of a FIIP proposal that

had been developed over the course of years and subjected to substantial

review. By requiring the agencies to “complete all reviews” and giving them

_120 days to “adopt a plan,” Congres. which was surely aware of how long

“reviews” can take, must fairly be understood to have intended that the

adopted “‘plan’’ mandated under § 342 would bear a close resemblance to the

FIIP (an approach Petitioners made clear was acceptable to them).

'’Nor is there the least merit to the Second Circuit's suggestion that the

“interim” character of the plan Congress mandated somehow detracts from

Petitioners’ claim, let alone their standing to maintain it. On the contrary.

Congress's enactment of § 342 and its command that Respondents take

“interim” Fire-Island action right away was a definitive rejection of the

21

The Second Circuit’s rule cannot be reconciled with

decisions of the Fourth, Fifth, Ninth, and Tenth Circuits, each of

which has made clear that focus on the probability of ultimate

redress 1s inappropriate in determining standing in cases such as

this one. The Tenth Circuit, for example, has recognized that it

is “immaterial” to the standing of a plaintiff suing to compel

compliance with a legally mandated processes, that performance

of the procedure “[might] not change” the outcome for

plaintiffs. Rio Hondo Committee, 102 F.3d at 448; accord

Douglas County, v. Babbitt, 48 F.3d 1495, 1500 (9th Cir. 1995)

(observing that uncertainty as to whether the findings of an EIS

would affect the agency’s determination is “not important”

under Lujan); Glickman, 156 F.3d at 613 (a “plaintiff need not

show that the procedural remedy that he is requesting will in fact

redress his injury”); Pye v. United States, 269 F.3d 459, 467-68

& n.7 (4th Cir. 2001) (“we may redress [plaintiffs’] injury by

requiring the Corps to comply with the procedures required by

the National Historic Preservation Act”; “plaintiffs need not

show that the result of the agency’s deliberations will be

different if the statutory procedure is followed”)."’

B. The Lower Federal Courts Are Divided As To The

Proper Analysis Under Lujan

Although the majority of courts have understood Lujan as

affirming that redressability is not defeated by uncertainty as to

agencies’ “no immediate action-is-needed” approach (and a victory for

Petitioners and others on Fire Island, who spent years calling congressional

attention to the seriousness of the shore problem, the recalcitrance of the

Respondents; and the likelihood that “permanent” relief would be too late in

coming). When the legislature is persuaded that a threat is sufficiently

imminent, see Lujan, 504 U.S. at 564, to direct an agency to act immediately,

the “temporary” duration of the mandated emergency measures cannot weigh

against judicial power to enforce them.

"See also Oregon Natural Desert Ass'n v. Dombeck, 172 F.3d 1092,

1094 (9th Cir. 1998) (“To establish redressability, * * * the plaintiffs need

not demonstrate that the ultimate outcome following proper procedures will

benefit them”). Cf State of Wis. v. FERC, 192 F.3d 642, 646 (7th Cir. 1999).

22

whether agency performance of the mandated process will, in

fact, result in a substantive benefit for the plaintiff, there

remains considerable uncertainty as to the nature of the Article

Il inquiry Lujan contemplates.

Most decisions have understood the Lujan footnotes as

shifting the redressability focus entirely away from the statistical

probability of a plaintiff-satisfying ultimate outcome — and

toward the connection between plaintiff’s concrete interests and

the design of the provision she seeks to enforce, see, e.g., Rio

Hondo Committee. But other courts have assumed that

probability of substantive redress remains “{}material” — indeed,

central — to the standing inquiry, treating Lujan as having

reduced the required level of certainty Thus, in an influential

decision, an en banc majority of the D.C. Circuit held that:

To demonstrate standing, then, a procedural-rights plaintiff

must show not only that the defendant's acts omitted some

procedural requirement, but also that it is substantially

probable that the procedural breach will cause the essential

injury to the plaintiff's own interest.

Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 667 (D.C.

Cir.1996) (en banc) (emphasis added). Compare Rio Hondo

Committee, 102 F.3d at 451 (expressly rejecting D.C. Circuit’s

standard as inconsistent with Lujan and with the structure and

purposes of the legislation). Other decisions indicate that the

probability of a change in ultimate outcome remains relevant,

but that a far less onerous showing than “substantial probability”

is appropriate. Society Hill Towers, 210 F.3d at 176 (observing

that “the alleged injury may well be redressed” by requiring

defendant to follow process) (emphasis added); Glickman, 156

F.3d at 613 (“the plaintiff must * * * show that there is a

possibility that the procedural remedy will redress his injury”)

(emphasis added)."”

'2 Although Glickman used the language of (very weak) probability, it

appeared to recognize that redressability is established “by show[ing] that

‘the procedures in question are designed to protect some threatened concrete

23

Moreover, decisions reaching similar results betray

disagreement as to the reasons why “normal’’ redressability

requirements do not defeat standing in the circumstances

discussed in Lujan. Some courts note the “informational” aspect

of the agency processes, Heartwood, Inc. v. U.S. Forest Serv.,

230 F.3d 947, 952 & n.5 (7th Cir. 2000); cf. Akins, 524 U.S. at

25, holding that plaintiffs’ injuries are redressed by agency

compliance even if outcomes do not change; others describe

their decisions as redressing a congressionally-created injury

(e.g., a right to be free of harm from uninformed decision-

making); and others emphasize Congress’s authority to

determine which concrete injuries should be actionable. Cf.

Sierra Club v Marsh, 872 F2d 497, 500 (1st Cir 1989). See

generally Gatchel, Informational and Procedural Standing after

Lujan v. Defenders of Wildlife, 11 J. LAND USE& ENVTL. L. 75,

99 (1995) (discussing “confusion surround[ing] the amount of

relaxation of the redressability and immediacy requirements”

after Lujan); Burt, Procedural Injury Standing After Lujan v.

Defenders of Wildlife, 62 U. CHI. L. REV. 275 (1995).

Although Petitioners would have standing under any of these

approaches (and indeed even under a proper application of the

implausibly demanding Second Circuit rule, see n.7, supra), the

Tenth Circuit approach is the most consistent with Lujan and

with broader principles underlying the Court’s standing and

administrative law jurisprudence. First, the rule shows proper

respect for Congress: a determination that the duty was designed

to protect the plaintiffs concrete interest, see Lujan, 504 U.S. at

573 n.8, means that Congress has determined that the likelihood

of substantive protection, whatever its magnitude, is sufficient

to warrant the agency process it has legislated. Cf Walters v.

Nat’! Ass'n of Radiation Survivors, 473 U.S. 305, 334 (1985).

interest of [its] that is the ultimate basis of [its] standing.’” 156 F.3d at 613

(quoting Lujan, 504 U.S. a1 573 n.8); Laub v. U.S. Dept. of Interior, 342 F.3d

1080, 1087 (9th Cir. 2003) (standing established because environmental!

analysis “could influence” result).

24

When a plaintiff has a personal interest that is threatened, the

increased probability of protection afforded by following the

legislatively-ordained process is enough “redress” to satisfy

Article I. Cf. Lujan, 504 U.S. at 580 (Kennedy, J. concurring)

(noting congressional power to “articulate chains of causation

that will give rise to a case or controversy”).’*

By contrast, a “redressability” analysis that focuses on

ultimate outcomes is inconsistent with settled understandings

about the availability of judicial review, see Akins, 524 U.S. at

25 (possibility that agency might yet “reach the same result for

a [lawful] reason” does not defeat redressability).'* It shows

insufficient respect for the judgment of Congress that the

benefits of the process are worthwhile; it imposes the heaviest

burdens on those seeking to challenge the most blatant agency

inaction (e.g., by permitting the agency to accuse the challenger

of “speculating” as what it would have done); it suggests

nonjusticiability of the claim that Lujan indicated could

“assuredly” be maintained — a NEPA suit by an affected

landowner; and it leaves plaintiffs to litigate over (and courts to

adjudicate) complex predictive judgments at the standing stage.

‘Many of the relevant cases describe both the injury and the redress in

probabilistic terms. See, e.g., Rio Hondo, 102 F.3d at 452 (because injury

entails “establish[ing)} the likelihood of [] increased risk” associated with

uninformed decisionmaking, redressability is accomplished by ordering

compliance with measures that lower that risk); Accord Pye, 269 F.3d at 267

& n.8. See also North Shore Gas Co. v. EPA, 930 F.2d 1239. 1242 (7th Cir.

1991) (“a probabilistic benefit from winning a suit is enough ‘injury in fact’

* * * to confer standing in the undemanding Article III sense”).

‘“Other doctrines permitting parties to defeat liability on the ground that

a violation is legally immaterial typically bear on the substantive merits.

rather than the plaintiff's standing to sue - and often entail a defendant's

Carrying a heavy proof burden. See Mr. Healthy Bd. of Educ. v. Doyle. 429

U.S. 274, 287 (1977): Neder v. United States 527 U.S. 1, 15 (1999)

(harmless error); cf. Friends of the Earth, Inc. v. Laidlaw Envyt'l Servs.. Inc..

528 U.S. 167, 189 (2000) (emphasizing demanding nature of showing

required to establish mootness through “voluntary cessation”).

25

C. The Second Circuit’s Decision Warrants Review as a

Departure From the Accepted and Usual Course of

Judicial Proceedings

The Second Circuit’s seriously erroneous jurisdictional

ruling occurred in a circumstance where courts have long

recognized not only their power to intervene, see Lujan, 504

U.S. at 560 (standing “serves to identify those disputes which

are appropriately resolved through the judicial process’’), but

their responsibility to do so— when an Executive Branch official

refuses to perform “precise, definite” acts “‘specifically and

unequivocally commanded” by the Legislature. SUWA, 124 S.

Ct. at 2379 (quoting ICC v. New York, N.H. & H.R. Co., 287

U.S. 178, 204 (1932) and United States ex rel. Dunlap v. Black,

128 U.S. 40, 46 (1888)). Some courts have held that where

congressionally-imposed deadlines are flouted, the judicial

responsibility is non-discretionary:

If [the agency] withholds such timely action, a reviewing

court must compel the action unlawfully withheld. To hold

otherwise would be an affront to our tradition of legislative

supremacy and constitutionally separated powers.

Forest Guardians v. Babbitt, 174 F.3d 1178, 1190 (10th Cir.

1999). See Zaller, The Case for Strict Construction of

Mandatory Agency Deadlines under Section 706(1), 42 WM. &

MARY L. REV. 1545, 1549-50 (2001).

But Kespondents’ violation is considerably more “blatant,”

Bluewater Network, 234 F.3d at 1314, than failing to comply

with § 342 in time: as explained, they have disclaimed any

intention of ever complying with the directive and have adopted

a position that is directly contrary to the one expressed by

Congress. See id. (granting writ of mandamus, on ground that

“the agency’s current ‘we-will-not-promulgate-regulations’

position is a blatant violation of the Act’).

Finally, the Second Circuit’s failure to exercise jurisdiction

and hold respondents to their duty must be judged in light of the

subject-matter of the statute and the concerns that led to its

26

enactment. Section 342 is a command that the agencies act

expeditiously to deal with a worsening crisis that posed (and

continues to pose) a threat to human safety, property, and

ecology, and it was prompted by Respondents’ refusal to take

appropriate action, pursuant to their existing (general) statutory

duties. See American Rivers, 372 F.3d at 418 (judicial response

to. agency default must “take into account the nature and extent

of the interests prejudiced,” noting that “delays * * * are less

tolerable when human health and welfare are at stake”).

I]. The Court Should Clarify That District Courts Are Not

Categorically Barred From Entertaining Suits For

Declaratory or Injunctive Relief Under The Takings Clause

The complaint in this case alleged that defendants’

construction of groins that blocked the natural littoral drift of

sand along the shoreline is threatening destruction of beachfront

property owned by various of the plaintiffs. These allegations,

if proven, would establish a Fifth Amendment taking: along line

of authority recognizes that a taking occurs when government.

with or without taking title, authorizes or causes a physical

invasion of private property, as by flooding associated with a

public works project. See United States v. Dickinson, 331 U.S.

'® The Second Circuit's dismissal of Petitioners’ other statutory claims

also reflected a fundamental misunderstanding of the Article III redressability

requirement. The court below held that Petitioners lacked standing to raise

their FINSA claim, on the ground that that statute’s general terms could not

readily be construed as imposing a duty to take specific actions likely to

redress Petitioners’ injuries. Pet.App.6a-7a. But that ruling badly confuses

Petitioners’ Article III standing with the merits of their APA cause of action:

to determine Petitioners’ standing, the Second Circuit should have looked to

whether a favorable decision — e.g., a declaration that Respondents’ refusal

to proceed was in violation of their duties under FINSA — would redress

Petitioners’ injuries_not whether that claim was likely to succeed on its

merits. Nor was this error harmless. No unfocused effort to enforce a broad

statutory mandate, see SUWA, Petitioners’ claim targets a particular instance

of agency inaction reflecting positions Congress specifically disabled the

agency from adopting, i.e., (1) postponing Fire Island action until the FIMP.

and (2) treating erosion threats to improved property as benign.

27

745 (1947); United States v. Causby, 328 U.S. 256 (1946):

Applegate v. United States, 25 F.3d 1579, 1580 (Fed. Cir. 1994)

(“Before the [federal] Canaveral Harbor project, a natural

southerly littoral flow of sand replenished 41 miles of white

sandy beaches. The * * * project interrupted this littoral flow.

* * * Due to the interruption of the littoral flow of sand, the

landowners have lost shoreline property”).

The district court nevertheless dismissed property-owning

Petitioners’ takings claim at the threshold, on the basis that they

could seek post-deprivation remedies under the Tucker Act or

state law. Pet.App.13a. The court of appeals affirmed, likewise

holding that Petitioners could not pursue claims for equitable

relief to protect their property from being washed away. See

Pet.App.9a & n.3 (citing Preseault, 494 U.S. at 11)."°

As the plurality in Apfel recognized, the question when a

party may sue for prospective relief under the Takings Clause

has generated continuing conflict and uncertainty. See 524 U.S.

at 522; see also Washington Legal Found. v. Texas Equal

Access to Justice Found., 270 F.3d 180, 190-95 (5th Cir. 2001),

vac'd and remanded sub nom. Phillips v. Washington Legal

Found., 538 U.S. 942 (2003). Some decisions, like the ones

below, have treated broad statements in this Court’s opinions as

announcing arule of near per se unavailability. But as the Apfel

plurality observed, the Court’s precedents do not support any

such undiscriminating rule: the Court repeatedly has sustained

injunctive relief in Takings cases, id. (citing Babbitt v. Youpee,

519 U.S. 234 (1997); Hodel v. Irving, 481 U.S. 704 (1987):

Concrete Pipe & Prods. of Cal., Inc. v. Construction Laborers

Pension Trust, 508 U.S. 602, 641-47 (1993)), and entertained on

the merits many other Takings challenges brought in district

court, see, e.g., Lingle v. Chevron U.S.A., Inc., 2005 WL

1200710 (2005); Connolly v. PBGC, 475 U.S. 211 (1986).

“Without elaboration, the appeals court also announced, in the final

sentence of its decision, that it was not “convinced” that Petitioners’ legal

remedies were “inadequate.” Pei.App.9a.

28

This case presents an opportunity for the full Court to make

explicit the principle that explains these seemingly divergent

results: that there is no per se bar, and that availability vel non of

such relief is to be determined under ordinary rules of law and

equity, in light of the particular circumstances in which the

Clause is invoked and whether Congress intended to confine

plaintiffs to a post-deprivation damages remedy.

Given the “nature of the taking alleged” in this case,

equitable relief “was within the district court[’]s power to

award.” Apfel, 524 U.S. at 521 (plurality opinion). First, the

practical concerns animating the Declaratory Judgment Act, 28

U.S.C. § 2201, apply with potent force here. As this Court has

recognized, the Act “‘allows individuals threatened with a

taking to seek a declaration of the constitutionality of the

disputed governmental action before potentially uncompensable

damages are sustained.’” Apfel, 524 U.S. at 521 (plurality

opinion) (quoting Duke Power Co. v. Carolina Envt'l Study

Group, Inc., 438 U.S. 59, 71 n. 15 (1978)).

There “is a substantial controversy, between parties having

adverse legal interests, of sufficient immediacy and reality,”

Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270,

273 (1941), as to the scope of respondents’ legal (and factual)

responsibility for the ongoing destruction of Petitioners’

property. A determination that Respondents are legally

responsible would, as a practical matter, spare all parties great

damage: if Respondents’ Taking Clause liability is established

now, it is far more likely that they will take the steps necessary

to prevent further property destruction (and the large

compensation obligations it would trigger) from coming to

pass.”

"Although declaratory relief is not dependent on the inadequacy or

unavailability of other remedies, see Fed. R. Civ. P. 57, a Tucker Act remedy

would not fully compensate Petitioners for the loss of their homes, and might

be resisted by defendants basex! upon the Flood Control Act. which provides

that “[nJo liability of any kind shall attach to or rest upon the United States

29

Moreover, the core of Petitioners’ claim is that the taking is

unauthorized — and indeed forbidden by — Congress: not only

do Petitioners maintain that Respondents’ means of building and

maintaining the groin field contravened congressional intent

(and that their refusal to corrective measures is in violation of

express congressional directives), but there is an express

statutory prohibition against nonconsensual takings of improved

properties. That prohibition, 16 U.S.C. § 459e-1(e), states (with

exceptions not relevant here) that “the Secretary shall not

acquire any privately owned improved property or interests

therein within the boundaries of the seashore * * * without the

consent of the owners.” Southern Cal. Fin. Corp. v. United

States, 634 F.2d 521,525 n.8 (Ct. Ci. 1980) (“whenever there is

no authority for a taking or intrusion, the claimant, although

unable to obtain compensation, can seek an injunction or a

declaratory judgment”).

The general principles that support judicial nonintervention

lose force when plaintiffs seek to stop takings on the basis that

the government lacks the power to take at all. In the paradigm

exercise of the eminent domain power, the legislature has

determined (1) that the purpose is a worthy one, and (2) that

those public purposes justify the action’s costs (ie.,

compensating property owners), and injunctive relief would

interfere with those determinations. But when an unauthorized

Taking is arrested, there has been no such legislative judgment

with which to interfere; indeed, by preventing statutorily

improper action, a court’s order vindicates the authority of the

body legally entitled to make the decision whether to condemn.

Cf. First English Lutheran Evangelical Church v. Los Angeles.

482 U.S. 304, 305 (1987) (noting that “[o]nce a court

determines that a taking has occurred, the government retains

the whole range of options already available —- amendment of the

regulation, withdrawal of the invalidated regulation, or exercise

for any damage from or by floods or flood waters at any place.” 33 U.S.C.

§ 702c. See DeVito v. United States, 12 F. Supp. 2d 269 (E.D.N.Y. 1998).

of eminent domain’”).!®

Importantly, § 459e-1(e) does not merely cast doubt on

Executive authority to take, it makes emphatically clear that

Congress did not intend to relegate Petitioners to the usual

compensation-after-destruction remedy. On the contrary, the

meaning of the exemption Congress enacted into FINSA

(largely in recognition of landowners’ generosity and support for

the legislation) is that monetary compensation, whether after an

otherwise regular exercise of the eminent domain power or after

inverse condemnation, is an inadequate remedy.

Conclusion

The petition for certiorari should be granted.

Respectfully submitted,

'*Accordingly, this Court’s decisions emphasize the centrality of post-

deprivation remedies for appropriations that are “duly authorized for a public

use,” Ruckelshaus v. Monsanto, 467 U.S. 986, 1016 (1984) (emphasis

added); First English, 482 U.S. at 315 (“the Amendment makes clear that it

is designed * * * to secure compensation in the event of otherwise proper

interference amounting to a taking”) (emphasis omitted); cf Regional Rail

Reorganization Act Cases, 419 U.S. 102, 127 n.16 (1974) (indicating that

“recovery is not available in the Court of Claims” for unauthorized taking).

This distinction tracks another strain of Court's Takings case law: when

government is alleged to run afoul of the Clause’s “public use” limitation,

injunctive relief is considered appropriate, even if the taking is compensated.

See, e.g., Missouri Pac. Ry. Co. v. Nebraska, 164 U.S. 403, 416 (1896).

Irving Like

REILLY, LIKE, & TENETY

179 Little East Neck Road North

Babylon, N.Y. 11704

(631) 669-3000

Sean H. Donahue

2000 L. Street, Suite 808

Washington, DC 20036

(202) 466-2234

Leon Friedman,

148 East 78th Street

New York, N.Y. 10021

(212) 737-0400

David T. Goldberg

Counsel of Record

99 Hudson Street, 8th FI.

New York, N.Y. 10013

(212) 334-8813

Lawrence R. Liebesman

HOLLAND & KNIGHT LLP

2099 Pennsylvania Ave.,

NW

Washington, D.C. 20006

(202) 955-3000

Counsel for Petitioners

MAY 2005

APPENDIX

United States Court of Appeals,

Second Circuit.

NEW YORK COASTAL PARTNERSHIP, INC., Maurice

Barbash, John W. Lund, Sandy Associates, Eugene D. Falk,

David Ash, Jerome Levy, M.D., Wells Newell, Joyce Segal,

the Harbour Club, Modica Associates of New York 122, LLC,

Fire Island Ferries, Inc., JMA Industries, Inc., David A.

Sloane, Harry Paritsky, White Cap Fish Company, Inc.,

Leonard Weinstein, Richard Stafford, Pamela Johnson,

Sayville Ferries Service, Inc., David Park Ferry Co., Robert

Johnson, Dunewood Property Owners’ Association, Fair

Harbor Fire District & James Grover, Jr.,

Plaintiffs-Appellants,

v.

UNITED STATES DEPARTMENT OF THE INTERIOR,

Gale Norton, Secretary of Interior, Constantine J. Dillon,

Superintendent of the Fire Island National Seashore, United

States Army Corps of Engineers, Gregory R. Dahlberg,

Acting Secretary of the Army, Robert B. Flowers, Lt. Gen,

Chief of Engineers, U.S. Army Corps of Engineers, Randy L.

Daniels, Secretary, New York State Department of State &

Erin M. Crotty, Commissioner, State of New York,

Department of Environmental Conservation,

Defendants-Appellees.

Docket No. 02-6132.

Argued: April 2, 2003.

Decided: Aug. 18, 2003.

Before: NEWMAN, POOLER, KATZMANN, Circuit Judges.

POOLER, Circuit Judge.

Plaintiffs-appellants appeal from the April 22, 2002

judgment of the United States District Court for the Eastern

la

District of New York (Jacob Mishler, District Judge ) granting

defendants-appellees' motion to dismiss the second amended

complaint. We affirm on the basis that plaintiffs-appellants do

not have standing to bring this suit.

BACKGROUND

Fire Island is locates off the coast of Long Island, New

York. The island, which is approximately 32 miles long and

between one-quarter and three-quarters of a mile wide, is home

to a series of beaches, parks, houses, and tourist-related

businesses. The Piping Plover, a migratory songbird species

whose Atlantic Coast population is "likely to become

endangered in the foreseeable future,” as determined by the U.S.

Fish & Wildlife Service, pursuant to 16 U.S.C. § 1532(20), uses

the island's beaches for nesting. The island itself helps protect

Long Island from storms and flooding from the Atlantic Ocean.

In 1964, Congress passed the Fire Island National Seashore

Act ("FINSA"), et seqg., which places primarily responsibility

for conserving and preserving the Fire Island coastline with the

U.S. Department of the Interior ("the DOI") and the U.S.

Department of Army, Corps of Engineers ("the Corps of

Engineers"). Pursuant to the Flood Control Act of 1970, the

state of New York must approve any shore erosion or beach

protection measure. See 42 U.S.C. § 1962d-5b.

At present, the DOI and the Corps of Engineers are

conducting a ref-mulation study to determine the best method

to control shore erosion on Fire Island. As an interim protection

measure, the Corps of Engineers proposed the Fire Island

Interim Project ("the FIP"), which would entail using sand to

construct or enhance various dunes and beaches on the island.

The Corps of Engineers estimated that the FIIP would require an

initial investment of $52.8 million and annual maintenance costs

of $5.2 million over a five-year period. Faced with a total

estimated cost of $78.8 million, the DOI and the Corps of

Engineers decided not to proceed with the FIIP. Moreover, the

state of New York did not agree to endorse the FLIP.

In May of 2001, plaintiffs-appellants filed this action

against "various federal and state authorities responsible for Fire

Island's erosion crisis." Some plaintiffs-appellants fear that their

property on Fire Island will eventually “wash away."

Plaintiffs-appellants who own property on Long Island allege

that the erosion of Fire Island's beaches and sand dunes will

result in damage to and eventual destruction of their property, as

Fire Island “play[s] a critical role in protecting against storm

damage and flooding" and “protect[s] hundreds of millions of

dollars worth of property on the mainland." Plaintiffs-appellants.

including the New York Coastal Partnership, Inc., also are

concerned about the environmental consequences of the erosion

of Fire Island's beaches, which includes the destruction of the

Piping Plover's nesting habitat.

Plaintiffs-appellants allege that defendants-appellees failed

to take remedial and protective actions that would remedy Fire

Island's sand erosion problem. Plaintiffs-appellants also allege

that defendants-appellees exacerbated the problem by preventing

the replenishment of sand through "littoral drift," whereby sand

from other islands would migrate down-drift to Fire Island.

Plaintiffs-appellants assert that these acts and omissions

constitute: 1) a de facto taking of property in violation of the

Fifth and Fourteenth Amendments of the United States

Constitution; 2) a deprivation of property in violation of 42

U.S.C. § 1983; 3) a violation of the Endangered Species Act, 16

U.S.C. § 1531 et seg.; 4) breaches of statutory and fiduciary

duties arising under FINSA, the Flood Control Act, the

Wilderness Act, 16 U.S.C. § 1131 et seg., the National Park

Service Act, 16 U.S.C. § 1 et seq., the National Environmental

Policy Act, 42 U.S.C. § 4321 et seg., the Environmental Quality

Improvement Act of 1970, 42 U.S.C. § 4371 et seq., the Water

3a

Resources Development Act of 1999, Pub.L. 106-53, and the

Coastal Zone Management Act, 16 U.S.C. § 1451 et seq.; and

5) a violation of the Administrative Procedures Act, 5 U.S.C. §

701 et seg. ("APA").

The United States District Court for the Eastern District of

New York (Jacob Mishler, District Judge ) granted

defendants-appellees’' motion to dismiss the second amended

complaint on April 19, 2002. With respect to the takings claim,

the district court ruled that the Takings Clause only prohibits

takings "without just compensation," and the court noted that

“both the federal and state judicial systems provide adequate

post-deprivation remedies by which [plaintiffs-appellants] might

bring an action seeking ‘just compensation’ for the alleged

governmental _ taking." The district court dismissed

plaintiffs-appellants' claim under 42 U.S.C. § 1983 pursuant to

sovereign immunity. The district court dismissed the claim

under the Endangered Species Act, holding that "[p]laintiffs

have not identified any conduct, in which the Defendants have

engaged, which can serve as the basis of an action under the

[Act].”". In particular, the district court found that

plaintiffs-appellants complained largely of government inaction

and pleaded only one affirmative act, which predated the

Endangered Species Act and was time-barred. The district court

dismissed plaintiffs-appellants' claims that defendants-appellees

breached their statutory and fiduciary duties, holding that the

federal defendants-appellees did not waive sovereign immunity

and that none of the statutes imposed an affirmative duty upon

the state defendants-appellees. Finally, the district court held

that plaintiffs-appellants could not maintain their APA claim

because agency inaction is presumably immune from judicial

review and there was no “final agency action” in this case.

Plaintiffs-appellants now appeal the district court's judgment.

DISCUSSION

4a

Plaintiffs-appellants seek relief that would compel

defendants-appellees to implement the FIIP or to take

affirmative action to combat shore erosion on Fire Island.

However, plaintiffs-appellants do not have standing to assert any

of their claims for equitable relief, as we cannot conclude that

the remedy they seek would likely redress the injuries of which

they complain.

In order to have standing, a plaintiff must satisfy three

constitutional requirements. First, the plaintiff must have

suffered an “injury in fact," which is "an invasion of a legally

protected interest which is (a) concrete and particularized, and

(b) actual or imminent, not conjectural or hypothetical." Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal

citations and quotation marks omitted). "Second, there must be

a causal connection between the injury and the conduct

complained of--the injury has to be ‘fairly ... trace[able] to the

challenged action of the defendant, and not ... th{e] result [of]

the independent action of some third party not before the court:'

" Id. (citation omitted) (alterations in original). Third, and most

important for purposes of this appeal, "it must be ‘likely,’ as

opposed to merely ‘speculative,’ that the injury will be 'redressed

by a favorable decision.’ " /d. (citation omitted).

Plaintiffs-appellants have no standing in this case, because

we can only speculate whether the remedy they seek would

redress their purported injuries.’ [FN1] Plaintiffs-appellants

identify no statutory authority that would specifically require

defendants-appellees to adopt the FIIP. Despite

plaintiffs-appellants' optimism, there is no indication that the

FIIP would, in fact, remedy Fire Island's erosion problems.

Moreover, we recognize that the FIP is merely an interim plan

'For purposes of this appeal, we assume without deciding that the

injuries of which plaintiffs-appellants complain are “actual” or “imminent,”

and not "conjectural" or “hypothetical.” Lujan, 504 U.S. at 560.

Sa

spanning a five-year period. Accordingly, even were the FIP

successful, at best, it would be terminated and shortly replaced

by another program whose chances of success are only

speculative at this point in time.

Plaintiffs-appellants argue that defendants-appellees’ failure

to act violates the Endangered Species Act, FINSA, the National

Park Service Act, the Water Resources Development Act, and

42 U.S.C. § 1983.° However, plaintiffs-appellants identify no

duty in any of these statutes that would require

defendants-appellees to act in a manner that would likely redress

the injury of which they complain. Plaintiffs-appellants argue

that defendants-appellees are violating the Endangered Species

Act because their inaction is destroying the nesting area of the

Piping Plover. Section 9 of the Endangered Species Act makes

it unlawful for any person to “take” any endangered or

threatened species. Babbitt v. Sweet Home Chapter of Cmtys.

for a Great Oregon, 515 U.S. 687, 690 (1995). The act defines

"take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap,

capture, or collect, or to attempt to engage in any such conduct.”

*In their second-amended complaint, plaintiffs-appellants alleged that

defendants-appellees have violated a host of statutes. Before this Court.

however, plaintiffs-appellants specifically argue only that

defendants-appellees have violated the Endangered Species Act. FINSA, the

National Park Service Act, the Water Resources Development Act, and 42

U.S.C. § 1983. While plaintiffs-appellants reference “the other individual

statutes that Defendants are charged with violating,” they provide no briefing

specific to their initial allegations that defendants-appellees have violated the

Fire Island Wilderness Act, the National Environmental Policy Act. the

Environmental Quality Improvement Act of 1970, and the Coastal Zone

Management Act. Plaintiffs-appellants also concede that the federal

defendants-appellees are immune from liability under the Flood Control Act

and provide no briefing that discusses whether the state defendants-appellees

are liable under this statute. Accordingly, plaintiffs-appellants have waived

these claims, see LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d

Cir.1995), though they have no standing to assert them for the reasons

discussed in this opinion.

6a

16 U.S.C. § 1532(19). While there is support for the notion that

omissions--in the face of a duty to act--may constitute violations

of the Endangered Species Act, see Babbitt, 515 U.S. at 716,

115 S.Ct. 2407 (Scalia, J., dissenting), plaintiffs-appellants

identify no duty requiring defendants-appellees to act in a

manner that would likely redress their alleged injuries.

Similarly, FINSA and the National Park Service Act impose

‘ no specific duties to act under these circumstances at this time.

These statutes speak only in terms of general] duties while

affording the federal defendants-appellees considerable

discretion in achieving the statutes’ general mandates. FINSA

provides that the Chief of Engineers, Department of the Army,

has the authority to undertake shore erosion control of Fire

Island. 16 U.S.C. § 459e-7(a). The act also provides that "[t]he

Secretary [of the Interior] shall administer and protect the Fire

Island National Seashore with the primary aim of conserving the

natural resources located there.” 16 U.S.C. § 459e-6(a).

Similarly, the National Park Service Act created the National

Park Service, which

shall promote and regulate the use of the Federal areas

known as national parks, monuments, and reservations ...

by such means and measures as to conform to the

fundamental purpose of the said parks, monuments, and

reservations, which purpose is to conserve the scenery and

the natural and historic objects and the wild life therein and

to provide for the enjoyment of the same in such manner

and by such means as will leave them unimpaired for the

enjoyment of future generations.

16 U.S.C. § 1. While plaintiffs-appellants interpret these statutes

as imposing general duties, there is no indication that the federal

defendants-appellees' exercise of discretion violates any specific

requirement or prohibition, as Congress afforded them

considerable discretion in exercising their authority to remedy

7a

shore erosion on Fire Island.

Plaintiffs-appellants pin most of their hopes on the Water

Resources Development Act of 1999, which required "the

Secretary [of the Army], in coordination with the heads of other

Federal departments and agencies, to complete all procedures

and reviews expeditiously and to adopt and submit to Congress,

not later than 120 days after the date of enactment of this Act, a

mutually acceptable shore erosion plan for the Fire Island Inlet

to [the] Moriches Inlet...." Pub. L. 106-53 § 342. Unlike the

other statutes plaintiffs-appellants cite, the Water Resources

Development Act contains express provisions for specific

action. Nevertheless, we cannot conclude that enforcement of

this provision is likely to remedy Fire Island's shore erosion

problem. The Water Resources Development Act does not

require the adoption of any specific plan. Nor does the act

mandate that defendants-appellees adopt and submit to Congress

a successful shore erosion plan. While the plan must be

“mutually acceptable," by the act's plain language, this term

means only that it must be acceptable to the Secretary of the

Army and "the heads of other Federal departments and

agencies.” The plan need not be acceptable to

plaintiffs-appellants. Thus, compliance with the Water

Resources Development Act would not necessarily make it

likely that any plan adopted and submitted to Congress would

remedy Fire Island's shore erosion problem.

For the same reason, plaintiffs-appellants do not have

standing to assert their claims for injunctive relief under 42

U.S.C. § 1983. Nor do plaintiffs-appellants have standing to

assert claims under the Administrative Procedures Act. See

Motor Coach Indus., Inc. v. Dole, 725 F.2d 958, 963 (4th

Cir. 1984) (recognizing that standing to assert a claim under the

APA requires that “the alleged injury must be such that it likely

would be redressed by a favorable decision"). We cannot

8a

conclude that the remedy plaintiffs-appellants seek would likely

redress their alleged injuries.

That is not to say that plaintiffs-appellants have no remedy

for their purported injuries. While we express no views on the

merits of their claim that the defendants-appellees' failure to

prevent shore erosion on Fire Island constitutes a de facto

taking, the Takings Clause prohibits the government from

seizing private property without providing "just compensation.”

It is not relevant that the government allegedly "took" the

property at issue prior to resolving the issue of compensation, as

"[t]he Fifth Amendment does not require that compensation

precede the taking." Ruckelshaus v. Monsanto Co., 467 U.S.

986, 1016 (1984). Although plaintiffs-appellants argue that a

remedy at law is inadequate, they do not have standing to seek

an equitable remedy in this situation. Nor do they convince us

that a remedy at law is, in fact, "inadequate."”

CONCLUSION

Based upon the foregoing, we affirm the judgment of the

United States District Court for the Eastern District of New

York.

‘However, "taking claims against the Federal Government are premature

until the property owner has availed itself of the process provided by the

Tucker Act." Preseault v. ICC, 494 U.S. 1, 11 (1990) (citations omitted).

9a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

NEW YORK COASTAL PARTNERSHIP, INC..,

et al.,

Plaintiffs, 01-CV-2777

-V.- Memorandum Of

Decision And

Order

UNITED STATES DEPARTMENT OF INTERIOR,

et al.

Defendants.

MISHLER, District Judge:

This action concerns erosion of the Fire Island coastline.

Plaintiffs claim that Defendants have violated, and continue to

violate, the United States Constitution and myriad federal and

state laws by their failure to implement the Fire Island Interim

Project (“FIIP”’). Presently before the Court are motions by both

the state and federal defendants to dismiss the Second Amended

Complaint, a cross-motion by the Plaintiffs for partial summary

judgment, and a motion by Environmental! Defense to intervene

as a third-party defendant. For the following reasons,

Defendants’ motions to dismiss are granted and the motions

by Plaintiffs and Environmental Defense are denied.

BACKGROUND

In 1964 Congress passed the Fire Island National Seashore

Act (“FINSA”), which places primary responsibility for

conserving and preserving the Fire Island coastline with the

Department of Interior (““DOT’) and the Chief of Engineers.

10a

Department of the Army (“Corps”). Under FINSA, the DOI and

the Corps are to settle on a “mutually acceptable” plan to protect

the Fire Island National Seashore. 16 U.S.C. § 459e-7(a).

However, pursuant to the Flood Control Act of 1970, before the

Corps can approve any shore or beach protection measure, such

measure must also be endorsed by a “non-Federal interest”,

presumable the state in which the project will be executed. 42

U.S.C. § 1962d-5b.

In 1995, as part of a comprehensive Reformation Study of

the Fire Island Inlet to Montauk Point Project (“Reformulation

Study’’), the Corps developed the FIP. The FIIP was conceived

of as an interim project, pending completion of. the

Reformulation Study, which is currently under active review and

is scheduled for completion of an active draft environmental

impact study in 2004. The parameters of the FIP are

memorialized in a Draft Decision Document and a Draft

Environmental Impact Statement, which were prepared by the

Corps in 1999. According to these documents, the estimated

initial costs of the FIP would be $52.8 million, and then there

would be annual renourishment, monitoring and maintenance

costs of $5.2 million for the final five years, for a total estimated

cost of $78.8 million.

Since its initial inception, both the DOI and the Corps have

concluded that it would not be prudent to proceed with the FIP.

Additionally, the State of New York has not agreed to act asthe

requisite “non-Federal interest” for implementing the FUP.

This action was recommenced on May 4, 2001 by the filing

of asummons and complaint. The complaint, as amended, seeks

declaratory and injunctive relief against the DOI, the Corps, the

State of New York, and numerous individual government

officials. Plaintiffs state five causes of action arising out of

Defendants’ determination not to go forward with the FHP: (1)

“de facto” taking of property in violation of the Fifth and

Fourteenth Amendments of the United States Constitution: (2)

deprivation of property in violation of 42 U.S.C. § 1983; (3)

violation of the Endangered Species Act, 16 U.S.C. § 1531 et

seg (“ESA”); (4) breach of statutory and fiduciary duties arising

under the FINSA, the National Park Service Act, 16 U.S.C. § 1

et seq, the Fire Island Wilderness Act, 16 U.S.C. § 1131 et seq,

the National Environmental Policy Act, 42 U.S.C. § 4321 etseq,

the Coastal Zone Management Act, 16 U.S.C. § 1451 etseq, and

the Water Resources and Development Act of 1999, Pub. L.

106-53; and (5) violation of the Federal Administrative

Procedures Act, 5 U.S.C. § 701 etseg (“APA”). Plaintiffs move

to dismiss the Second Amended Complaint. For the following

reasons. Plaintiffs’ motions are granted.

DISCUSSION

1. First Cause of Action

Plaintiffs’ first cause of action asserts that Defendants’

failure to implement the FIIP constitutes a “taking without just

compensation” in violation of the Fifth and Fourteenth

Amendments to the United States Constitution. The crux of

Plaintiffs’ claim is that Defendants’ failure to implement the

FIP has resulted in the accelerated erosion of Fire Island’s

coastline and constitutes a “taking” of Defendants’ property.

We find that the first cause of action fails to state a viable

“takings” claim against any of the Defendants. The Fifth

Amendment does not proscribe the “taking of property” in

allrespects. It precludes the government from “taking” property

“without just compensation.” Accordingly, to succeed on a Fifth

Amendment takings claim, a plaintiff must demonstrate that he

has sought, and was denied, just compensation for the

governmental taking. Here, both the federal and the state

judicial systems provide adequate post-deprivation remedies by

which Plaintiffs might bring an action seeking “just

compensation” for the alleged governmental taking. Plaintiffs

12a

could seek redress against the Federal Defendants by way of an

action in the United States Court of the Federal Claims. Eastern

Enterprises v. Apfel, 524 U.S. 498, 520 (1998) (“a claim for just

compensation under the Takings Clause must first be brought in

the Court of Federal Claims in the first instance, unless

Congress has withdrawn the Tucker Act grant of jurisdiction in

the relevant statute’). Similarly, New York State provides

adequate procedures by which a plaintiff may seek just

compensation for a governmental taking. See Vaizburd v United

States, 90 F. Supp. 2d 210, 216-17 (E.D.N.Y. 2000)(““New York

State provides two such ‘reasonable, certain and adequate

provision(s].’... One is to seek compensation through the

procedures detailed in the New York State Eminent Domain

Procedure Law... The other is to bring a state law cause of action

under Article I, Section 7 of the New York State Constitution’’).

Plaintiffs have chosen, however, not to avail themselves of these

procedures . Thus, Plaintiffs may not seek injunctive relief for

the “taking” of their property in this Court. See Long v. Area

Manager Bureau of Reclamation, 236 F.3d 910, 917 (8th Cir.

2001) (“Equitable relief is not available to enjoin an alleged

taking of private property...when a suit for compensation can

bebrought against the sovereign subsequent to the taking”

(quoting Ruckelhaus v. Monsanto Co., 467 U.S. 304, 321-22

(1984)).

Accordingly, the first cause of action should be dismissed.

2. Second Cause of Action

Plaintiff's second cause of action essentially restates their

Fifth and Fourteenth Amendment “takings clause” claim as a

member under 42 U.S.C. § 1983. The Second Amended

Complaint alleges that “[b]y participating with the Federal

Defendants in the defacto takings and deprivations of Plaintiffs’

property rights and breaching their duties under the Federal and

State law and their promises to mitigate the damages caused,

13a

and to protect and preserve the resources of FINS and the

properties of the FINS property owners, the State Defendants

have deprived Plaintiffs of their constitutionally protected rights

in violation of 42 U.S.C. Section 1983.”

Second Amended Complaint { 98.

We find the second cause of action is precluded by the

doctrine of sovereign immunity.'

“As a general matter, the Eleventh Amendment bars suits of any

sorts against a state in federal court unless the state has

consented to be sued or Congress has expressly abrogated the

state’s immunity.” Kostok v. Thomas, 105 F. 3d 65, 68 (2d Cir.

1997). Inenacting 42 U.S.C.§ 1983, Congress did not expressly

abrogate the states’ sovereign immunity. See Will v. Michigan

Dep't of State Police, et al., U.S. 58, 71 (1981). Accordingly,

in the absence of a state waiver of sovereign immunity, which

is not present in this case, states are not subject to suite under 42

U.S.C. § 1983 in federal courts.

In asserting the viability of their second cause of action,

Plaintiffs rely on the exception to sovereign immunity first set

forth in Ex Parte Young, 209 U.S. 123 (1908). The Young

exception applies to suits seeking injunctive or declaratory relief

against state officers whose ongoing action or threat of action

violates a specific and ongoing federal law. See West 95

Housing Corp. v. New York City Dept. of Housing Preservation

and Development, No. 01 CV 1345, 2001 WL 664628, *7

'To the extent that Plaintiffs seek to assert this cause of action against

the federal defendants, this claim must also fail. See Robinson v. Overseas

Military Sales Corp., 2) F.3d 502, 510 (2d Cir. 1988) (claim may not be

made under § 1983 against federal employees acting in their official capacity

: Lehman v. Kornblau 134 F. Supp. 2d 281, 295 (E.D.N.Y. “The plaintiff

also seeks damages against [the defendant] in her individual capacity for

alleged violations of his constitutional rights under 42 U.S.C. § 1983, which

is limited to state actors and does not apply to federal employees’)

l4a

(S.D.N.Y. June 12, 2001), aff'd 2002 WL 355951 (2d Cir.

2000). Here, although the Second Amended Complaint demands

injunctive and declaratory relief, Plaintiffs’ claim does not

qualify under the Young exception because they have not

isolated a viable “specific and ongoing” federal violation.

Plaintiffs’ § 1983 action is premised on violation of their rights

under the “takings” clause of the Fifth and Fourteenth

Amendments.

However, as set forth above, Plaintiffs have not been denied

“just compensation” for any alleged taking, and thus are not

victims of a violation of federal law. See Hellenic American

Neighborhood Action Committee v. City of New York, 101 F.3d

877, 880-81 (2d Cir. 1996) (holding that alleged state violation

of aconstitutionally protected property interest is not actionable

under § 1983 where the state provides a meaningful post-

deprivation remedy.)

Accordingly, Plaintiffs may not rely on the Young exception

to sovereign immunity, and the second cause of action should be

dismissed.

3. Third Cause of Action

Plaintiffs’ third cause of action asserts a violation of the

ESA. Plaintiffs assert that the Fire Island beach erosion has

resulted in a loss of habitat for the piping plover (charadrius

melodus). Thus, Plaintiffs assert, Defendants’ failure to remedy

the Fire Island beach erosion constitutes the “take” of an

endangered species in violation of the ESA.

Plaintiffs’ third cause of ation must fail because Plaintiffs

have not identified any conduct, in which the Defendants have

engaged, which can serve as the basis of an action under the

ESA. The ESA provides, in relevant part that:

[A]ll federal departments and agencies shall seek to

15a

conserve endangered species and shall utilize their

authorities in furtherance of the purpose of this chapter....

Each Federal agency shall, in connection with and with the

assistance fo tne Secretary [of the Interior] insure that any

action authorized funded or carried out by such agency...is

not likely to jeopardize the continued existence of any

endangered species or threatened species or result in the

destruction or adverse modification of habitat of such

species which is determined by the Secretary ...to be critical

16 U.S.C. §§ 1531(c)(1); 1536(a)(2) (emphasis added).

Additionally, the ESA makes it unlawful to “take” an

endangered species. 16 U.S.C. § 1538(a)(1)(B). The term

“take” is defined to include “harm”, which in turn is defined as

any act that “actually kills or injures wildlife” including

“significant habitat modification or degradation” that “actually

kills or injures wildlife by significantly impairing essential

behavioral patterns, including breeding, feecing or sheltering.”

De CP 37.5:

Here, although Plaintiffs plead a significant modification of

the piping plover’s habitat by virtue of the Fire Island coastline

erosion, Plaintiffs do not charge that any conduct by

theDefendants is responsible for this alleged “take.” In an

attempt to link Defendants to the habitat degradation, Plaintiffs

initially point to the Defendants failure to remedy the coastline

erosion through the FIP. This claim, however, relies only

Defendants discretionary imaction. It does not allege any

unlawful conduct. In apparent recognition of this fault,

Plaintiffs claim that the damage to the Fire Island coastline, and

in turn to the piping plover’s habitat, is a result of the

Defendants’ participation in a 1971 project whereby groins were

created in and around Westhamption Beach, New York.

Defendants participation in this 1971 project, however, may not

serve as the predicate conduct: to an ESA claim, both because

16a

it pre-dates the 1973 effective date of the ESA, and because the

statue of limitations on an ESA claim arising out of thisconduct

has long expired.* Therefore, Plaintiffs have isolated no act, by

any of the defendants, which support its claim under the ESA.

Accordingly, the third cause of action should be dismissed.

4. Fourth Cause of Action

Plaintiff's fourth cause of action asserts that, by failing to

implement the FIIP, Defendants breached their duties under

numerous statutes Upon review of the relevant statutory

sections and the parties’ arguments. We find that Plaintiffs have

failed to state a viable claim under any of these statutes.

A. FINSA

Although Plaintiffs reference several statutes with respect

to the fourth cause of action, their memoranda centers around

alleged violation of the FINSA. Plaintiffs, however, may

notproperly assert, aclaim against Defendants under the FINSA,

because the FINSA does not waive the Federal Defendants’

sovereign immunity, and Plaintiffs have failed to demonstrate

that the State Defendants have violated any affirmative duty

under the FINSA.

“Absent a waiver, sovereign immunity shields the Federal

Government and its agencies from suit.” FDIC v. Meyer, 510

U.S. 471, 475 (1994). “The Supreme Court has clearly stated

that an ‘unequivocal expression’ of waiver of sovereign

immunity must be in the text of the relevant statute for a claim

* The ESA does not contain an express state of limitations. Therefore.

with respect to the federal defendants, we apply the six year state of

limitations generally applicable to civil actions against the federal

government 28 U.S.C. § 2401(a); Alsea Valley Alliance v. Evans 161 F.

Supp.2d 1154, 1160(D Ore. 2001). With respect to the state defendants, we

apply the five year state of limitations for actions to enforce a civil fine or

penalty. 28 U.S.C. § 2452. Both of these statute of limitations have long

expired.

17a

to go forward.” Raymond Proffitt Foundation v. U.S. Army

Corps of Engineers, 175 F. Supp. 2d 755, 755 (E.D. Penn. 2001)

(quoting United States v. Nordic Village, Inc., 503 U.S. 30, 37

(1992)). Plaintiffs bear the burden of establishing an explicit

waiver of the government’s sovereign immunity. Id.; United

Tribe of Shawnee Indians v. United States, 55 F. Supp. 2d 1238,

1243 (D. Kan. 1999).

Here, Plaintiffs have entirely failed to point to anything in

the text of the FINSA that could be construed as a waiver of

sovereign immunity. Therefore, Plaintiffs’ claim against the

Federal Defendants under the FINSA must be dismissed.

Plaintiffs also fail to state a valid claim against the State

Defendants. Plaintiffs have not highlighted anything in the

FINSA which creates an affirmative duty on the State to act.

Pursuant to the FINSA, the DOI and the Corps are charged with

the responsibility to reach a “mutually acceptable” plan to

address shore erosion on Fire Island. Even if the framers of this

Statute expected the State of New York to participate as the

“non-federal interest” in implementing such “mutually

acceptable” plan, Plaintiffs have nto directed the Court to any

language in the FINSA that imposes an affirmative duty on the

State Defendants to so act.

Furthermore, even if the FINSA did require the State

Defendants to act with respect to the Fire Island coastal erosion,

there is no basis for Plaintiffs’ claim that Defendants are

required to undertake the particular course of action that

Plaintiffs endorse . This is especially true considering the fact

that the FIIP has never been adopted as a “mutually acceptable”

plan by the DOI and the Corps. Thus, Plaintiffs have failed to

point to any duty under the FINSA that the State Defendants

have breached.

Accordingly, Plaintiffs’ claims arising under the FINSA

should be dismissed.

18a

5. Fifth Cause of Action

Plaintiffs’ fifth cause of action is brought under the APA.

It asserts that, by failing to implement the FIP, the DOI and the

Corps have failed to perform their duty under the FINSA to

develop an erosion protection plan.

We find this claim to be meritless, both because the agency

action that Plaintiffs wish to compel is discretionary, and

because there has been no “final agency action” for which

redress can be sought under the APA.

First, we find that the DOI and the Corps’ failure to act with

regard to the FIIP is not actionable. An agency’s decision not to

take a executive action is “presumed immune from judicial

review under section 701(a)(2)” of the APA. Heckler v.

Chaney, 470 U.S. 821, 831-32 (1985). Although the FINSA

charges the DOI and the Corps with the responsibility of

protecting the Fire Island Shoreline, it does not mandate that

those agencies implement any particular project. The DOI and

the Corps have discretion as to the best manner to effect the

FINSA’s mission. See Raymond Proffitt Foundation, 175 F.

Supp.2d at 767 (“the environmental protection mission was

placed upon the Corps as a whole, not upon each individual

water resources project. The Corps has the discretion to apply

this statutory mission to water resources projects that it operates,

but is not obligated to implement it at any particular one’’).

Accordingly, the DOI and the Corp’s inaction with regard to the

FUP is precluded from judicial review.

Additionally, Defendants’ inaction with regard to the FUP

B. Other Statutes

In addition to the FINSA, Plaintiff’s assert that Defendants’

conduct, or lack thereof, violates statutory and fiduciary duties

arising under the National Park Service Act, 16 U.S.C. § et seq.,

the Fire Island Wilderness Act, 16 U.S.C. § 1131 ef seq.,

Management Act, 16 U.S.C. § 1451 et seqg., and the Water

19a

Resources and Development Act of 1999, Pub. L. 106-53.

For the same reasons that Plaintiffs’ FINSA claim is

defective, however, Plaintiffs have failed to state a meritorious

cause of action under any of these statutes . Plaintiffs have not

demonstrated a valid waiver of sovereign immunity with respect

to any of these statutes. Nor have Plaintiffs demonstrated how

any of these statutes imposed a mandatory obligation on the

State Defendants which Plaintiffs may enforce through this

private action.

In that Plaintiffs have n established any actionable violation

of federal law, and this Court will not retain supplemental

jurisdiction to consider the state law claims, the fourth cause of

action should be dismissed.

5. Fifth Cause of Action

Plaintiffs’ fifth cause of action is brought under the APA.

It asserts that, by failing to implement the FIIP, the DOI and the

Corps have failed to perform their duty under the FINSA to

develop an erosion protection plan.

We find this claim to be meritless, both because the agency

action that Plaintiffs wish to compel is discretionary, and

because there has been no “final agency action” for which

redress can be sought under APA.

First, we find that the DOI and the Corps’ failure to act with

regard to the FIIP is not actionable. An agency’s decision not to

take an executive action is “presumed immune from judicial

review under section 701(a)(2)” of the APA. Heckler v.

Chaney, 470 U.S. 821, 831-2(1985). Although the FINSA

charges the DOI and the Corps with the responsibility of

protecting the Fire Island Shoreline, it does not mandate that

those agencies implement any particular project. The DOI and

the Corps have discretion as to the best manner to effect the

FINSA’s mission. See Raymond Proffitt Foundation, 175

F.Supp.2d at 767 (“the environmental protection mission was

20a

placed upon the Corps as a whole, not upon each individual

water resources project. The Corps has the discretion to apply

this statutory mission to water resources projects that it operates,

but is not obligated to impiement it at any particular one”).

Accordingly, the DOI and Corp’s inaction with regard to the

FIIP is precluded from judicial review.

Additionally, Defendants’ inaction with regard to the FIP

does not constitute “final agency action,” and thus may not be

the subject of an APA claim. To state a cognizable claim under

the APA, a plaintiff must challenge “a final agency action” for

which “there is no other adequate remedy in acourt”. 5 U.S.C.

§ 704. The Second Circuit employs a “pragmatic” approach to

determining whether an agency action is “final” within the

meaning of the APA. Here, it is well-established that the FIIP

was envisioned as only a temporary remedial measure, as a

subset to the Reformulation Study. Goldberg Declaration, Ex.

1, pp. 1, 67. Indeed, the Reformulation Study is currently in

progress, and a “draft impact statement” is slated to be prepared

in 2004. Jd. Under these circumstances, the FIP, and

particularly the Defendants’ inaction with respect to the FIP,

could hardly be categorized as a “final agency action.” See

United Tribe of Shawnee Indians, 55 F. Supp.2d at 1246 (“The

evidence indicates that the agency is currently considering

additional comments and that no final [finding] or

environmental impact statement has been issued. Accordingly,

plaintiff has failed to established final agency action and the

court has no jurisdiction over the NEPA claim’).

Accordingly, Plaintiffs’ claim under the APA should be

dismissed.

CONCLUSION

For the foregoing reasons, Defendants’ motions to dismiss

the Second Amended Complaint are GRANTED. Plaintiffs’

2la

cross-motion for partial summary judgment is DENIED.

Environmental defense motion for leave to intervene as a party

defendant is, accordingly, DENIED as moot. The Clerk is

directed to enter judgment in favor of Defendants and against

Plaintiffs dismissing the Second Amended Complaint

Dated: April 19, 2002

Central Islip, New York

/s/

Jacob Mishler

U.S. District Judge

At a stated term of the United States Court of Appeals for the

Second Circuit, heid at the United States Courthouse, Foley

Square, in the City of New York, on the 17 Day of December,

two thousand four

NYCP v. DOI

A petition for panel rehearing and a petition for rehearing en

banc having been filed by thr appellant New York Coastal, et al.

Upon consideration by the panel that decided the appeal, it

is ordered that said petition for rehearing be DENIED.

It is further noted that the petitions for rehearing en banc have

been transmitted to the judges for the Court in regular active

service and to any other judge that heard the appeal and that no

such judge has requested that a vote be taken thereon.

For the Court

Roseann B. Mackechnie

By: + /s/

Arthur Heller

Motion Staff Attorney

23a

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const., Amendment V:

* * * * Nor shall private property be taken for public use,

without just compensation.

* Kk KX *

Administrative Procedure Act:

$-U S.C. § 55113):

“agency action” includes the whole or a part of an agency

rule, order, license, sanction, relief, or the equivalent or

denial thereof, or failure to act.

5 U.S.C. § 702:

A person suffering legal wrong because of agency action, or

adversely affected or aggrieved by agency action within the

meaning of a relevant statute. * * * *

5 U.S.C. § 706:

To the extent necessary to decision and when presented, the

reviewing court shall decide all relevant questions of law,

interpret constitutional and statutory provisions, and

determine the meaning or applicability of the terms of an

agency action. The reviewing court shall--

(1) compel agency action unlawfully withheld or

24a

unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and

conclusions found to be--

(A) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege. or

immunity;

(C) in excess of statutory jurisdiction, authority, or

limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to

sections 556 and 557 of this title or otherwise reviewed on

the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are

subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall

review the whole record or those parts of it cited by a party,

and due account shall be taken of the rule of prejudicial error.

* K KX *

Declaratory Judgment Act, 28 U.S.C. 2201

(a) In a case of actual controversy within its jurisdiction

* * * any court of the United States may upon the filing of

an appropriate pleading, may declare the rights and other

legal relations of any interested party seeking such

declaration, whether or not further relief is or could be

sought. Any such declaration shall have the force and

effect of a final judgment or decree and shall be reviewable

ae ach. tT *.* 73

Tucker Act, 28 U.S.C. § 1491

(a)(1) The United States Court of Federal Claims shall have

jurisdiction to render judgment upon any claim against the

United States founded either upon the Constitution, or any

Act of Congress or any regulation of an executive

department, or upon any express or implied contract with

the United States, or for liquidated or unliquidated damages

in cases not sounding in tort. [* * * *]

* * K *

Fire Island National Seashore Act, Pub. L. 88-587, 16 U.S.C.

§§ 459e, et seq.:

§ 459e. Fire Island National Seashore

(a) Purposes; authorization for establishment

For the purpose of conserving and preserving for the use of

future generations certain relatively unspoiled and

undeveloped beaches, dunes, and other natural features

within Suffolk County, New York, which possess high

values to the Nation as examples of unspoiled areas of great

natural beauty in close proximity to large concentrations of

urban population, the Secretary of the Interior 1s authorized

to establish an area to be known as the "Fire Island National

Seashore”.

(b) Boundaries

The boundaries of the national seashore shall extend from

26a

the easterly boundary of the main unit of Robert Moses

State Park eastward to Moriches Inlet and shall include not

only Fire Island proper, but also such islands and

marshlands in the Great South Bay, Bellport Bay, and

Moriches Bay adjacent to Fire Island as Sexton Island, West

Island, Hollins Island, Ridge Island, Pelican Island,

Pattersquash Island, and Reeves Island and such other small

and adjacent islands, marshlands, and wetlands as would

lend themselves to contiguity and reasonable administration

within the national seashore and, in addition, the waters

surrounding said area to distances of one thousand feet in

the Atlantic Ocean and up to four thousand feet in Great

South Bay and Moriches Bay and, in addition, mainland

terminal and headquarters sites, not to exceed a total of

twelve acres, on the Patchogue River within Suffolk

County, New York, all as delineated on a map identified as

"Fire Island National Seashore", numbered OGP-0004,

dated May 1978. The Secretary shall publish said map in

the Federal Register, and it may also be examined in the

offices of the Department of the Interior.

§ 459e-1. Acquisition of property

(a) Authority of Secretary; manner and place; concurrence

of State owner; transfer from Federal agency to

administrative jurisdiction of Secretary; liability of United

States under contracts contingent on appropriations

The Secretary is authorized to acquire, and it is the intent of

Congress that he shall acquire as appropriated funds

become available for the p»rpose or as such acquisition can

be accomplished by donation or with donated funds or by

transfer, exchange, or otherwise, the lands, waters, and

other property, and improvements thereon and any interest

27a

therein, within the boundaries of the seashore as established

under section 459e of this title. * * * *

(b) Establishment; notice in Federal Register

When the Secretary determines that lands and waters or

interests therein have been acquired by the United States in

sufficient quantity to provide an administrative unit, he

shall declare the establishment of the Fire Island National

Seashore by publication of notice in the Federal Register.

pitedke

(e) Limitation of condemnation power during existence of

zoning ordinance; Davis Park-Smith Point County Park

“area exception; beneficial owner's election of alternatives

as condition for acquisition

Wi one exception the Secretary shall not acquire any

privately owned improved property or interests therein

within the boundaries of the seashore or any property or

interests therein within the communities delineated on the

boundary map mentioned in section 459e of this title,

except beach or waters and adjoining land within such

communities which the Secretary determines are needed for

public access to the beach, without the consent of the

owners so long as the appropriate local zoning agency shall

have in force and applicable to such property a duly

adopted, valid, zoning ordinance that is satisfactory to the

Secretary. The sole exception to this limitation on the

power of the Secretary to condemn improved property

where appropriate zoning ordinances exist shall be in the

approximately eight-mile area from the easterly boundary

of the Brookhaven town park at Davis Park, in the town of

28a

Brookhaven, to the westerly boundary of the Smith Point

County Park. In this area only, when the Secretary deems

it advisable for carrying out the purposes of sections 459e

to 459e-9 of this title or to improve the contiguity of the

park land and ease its administration, the Secretary may

acquire any land or improvements therein by condemnation.

In every case in which the Secretary exercises this right of

condemnation of improved property the beneficial owner or

owners (not being a corporation) of any improved property

so condemned, provided he, she, or they held the same or a

greater estate in the property on July 1, 1963, may elect as

a condition of such acquisition by the Secretary any one of

the following three alternatives:

(1) that the Secretary shall take the said property in fee

simple absolute and pay the fair market value thereof as

of the date of such taking;

(2) that the owner or owners shall retain a life estate in

said property, measured on the life of the sole owner or

on the life of any one person among multiple owners

(notice of the person so designated to be filed in writing

with the Secretary within six months after the taking) or

on the life of the survivor in title of any estate held on

July 1, 1963, as a tenancy by the entirety. The price in

such case shall be diminished by the actuarial fair market

value of the life estate retained, determined on the basis

of standard actuarial methods;

(3) that the owner or owners shall retain an estate for

twenty-five years. The price in this case shall likewise be

diminished by the value of the estate retained.

(f) "Improved property" defined

The term “improved property" as used in sections 459e to

459e-9 of this title shall mean any building, the construction

of which was begun before July 1, 1963, and such amount

of land, not in excess of two acres in the case of a residence

or ten acres in the case of a commercial or industrial use, on

which the building is situated as the Secretary considers

reasonably necessary to the use of the building: Provided,

That the Secretary may exclude from improved properties

any beach or waters, together with so much of the land

adjoining such beach or waters as he deems necessary for

public access thereto.

[* * * *]

§ 459e-3. Retention by owner of right of use and

occupancy of improved property for residential

purposes

(a) Time limit; value of reserved right

Owners of improved property acquired by the Secretary

may reserve for themselves and their successors or assigns

a right of use and occupancy of the improved property for

noncommercial residential purposes for a term that is not

more than twenty-five years. The value of the reserved

right shall be deducted from the fair market value paid for

the property.

(b) Termination of right; compensation

A right of use and occupancy reserved pursuant to this

section shall be subject to termination by the Secretary upon

his determination that the use and occupancy is not

30a

consistent with an applicable zoning ordinance approved by

the Secretary in accordance with the provisions of section

459e-2 of this title, and upon tender to the owner of the

right an amount equal to the fair market value of that

portion of the right which remains unexpired on the date of

termination.

eee aS

§ 459e-6. Administration, protection, and development

(a) Conservation of natural resources of Seashore:

preservation and access to Sunken Forest Preserve

The Secretary shal] administer and protect the Fire Island

National Seashore with the primary aim of conserving the

natural resources located there. The area known as the

Sunken Forest Preserve shall be preserved from bay to

Ocean in as nearly its present state as possible, without

developing roads therein, but continuing the present access

by those trails already existing and limiting new access to

similar trails limited in number to those necessary to allow

visitors to explore and appreciate this section of the

seashore. [* * * *]

§ 459e-7. Shore erosion control or beach protection

measures; Fire Island inlet

(a) Authority of Chief of Engineers

The authority of the Chief of Engineers, Department of the

Army, to undertake or contribute to shore erosion control or

31a

beach protection measures on lands within the Fire Island

National Seashore shall be exercised in accordance with a

plan that is mutually acceptable to the Secretary of the

Interior and the Secretary of the Army and that is consistent

with the purposes of sections 459e to 459e-9 of this title.

et an

OTHER MATERIALS

{December 17, 1999 Letter from Joseph W. Westphal. Assistant

Secretary of the Army (Civil Works) to Hon. J. Dennis Hastert]

Honorable J. Dennis Hastert

Speaker of the House

of Representatives

House of Representatives

Washington, D.C. 20515

Dear Mr. Speaker:

Section 342 of the Water Resources Development Act of

1999 (WRDA 1999) directs the Secretary of the Army, in

coordination with the heads of other Federal departments and

agencies, to complete all procedures and reviews expeditiously

and to adopt and submit to Congress, not later than 120 days

after the date of enactment of the Act a mutually acceptable

shore erosion plan for the Fire Island inlet to Moriches inlet

reach of the Fire Island to Montauk Point, New York, project.

We are pleased to be able to inform you that on December

6, 1999, the Army Corps of Engineers New York District

released, for public and agency review a draft decision

document and draft environmental impact statement (DEIS) for

the Fire Island, New York, Interim Project. My staff have

worked closely with staff from the Corps, the Department of the

Interior (DOJ), and the State of New York since the execution of

the Fire Island, New York Interim Project Partnership

Agreement (Partnership Agreement) in July 1999, to address a

number of complex issues regarding project design and

implementation. We believe that the release of the draft

decision document and the DEIS constitutes a key procedural

Step in accordance with the Section 342 requirement to

expeditiously accomplish all procedures and reviews.

Additionally, the Corps will continue its fish and Wildlife

34a

Coordination act and Endangered Secies Act requirement. The

Corps plans to complete the final decision document and EIS

during the Spring of 2000 and be in a position to sign a Record

of Decision by July 2000.

The Partnership Agreement established that the Corps

would propose a minimum duration project that could be

justified economically, a six-year project defined as initial

placement (with advance nourishment), and one scheduled

renourishment episode. These elements of the draft plan are

mutually acceptable as required by Section 342. For your

convenience, we have enclosed the Partnership Agreement and

relevant exerpts from the draft decision document and the DEIS.

The comment period for the draft decision document and

DEIS ends on January 31, 2000. The Corps will consider all

comments received as they work to produce the final documents

next Spring that will make a final recommendation for the

interim project. The Corps will continue to work with DOI staff

to ensure that the final documents can be embraced by both

agencies. Additionally, the Corps will continue to consult with

DOI staff on matters pertaining to the consistency of the interim

project with the enabling legislation of the Fire Island National

Seashore and the National Park Service’s policies on beach

nourishment.

One challenging issue that remains unresolved is how to

address concerns about expansion of existing development and

new development that might occur as a result of implementation

of the interim project. We will continue to explore options for

addressing communities over the coming months. We are

hopeful that a mutually acceptable solution to this issue will

emerge as a result of the public and agency review period for the

draft decision document and DEIS.

Please do not hesitate to contact me if you have any

questions.

Sincerely,

/s/

Joseph W. Westphal

Assistant Secretary of the Army

(Civil Works)

[Letter from Congressional Leaders to Secretary Babbit]

Congress of the United States

House of Representatives

Washington, DC 20515

January 16, 1996

Honorable Bruce Babbitt

Secretary of the Interior

Department of the Interior

Washington, D.C. 20240

Dear Mr. Secretary:

We seek your assistance in promoting a speedy resolution

to the few issues that stand in the way of a much-needed Interim

Project that will provide erosion protection to Fire Island, New

York, and flood protection to Long Island’s south shore. We

understand that there has been difficulty in resolving some

issues that have arisen between the action agency [the U.S.

Army Corps of Engineers (COE)], and the project sponsor [the

New York State Department of Environmental Conservation

(NYSDEC)] on the one hand, and the U.S. Department of the

Interior (DOT) through the U.S. Fish and Wildlife Service

(FWS) and the National Park Service (NPS) on the other.

We are told that the primary concerns of the involved

parties center around the relationship between the Interim

Project and a future and more comprehensive, longer-term

project that will be based on a Reformulation Study covering an

83-mile stretch of coastline. The Reformulation Study and an

associated Environmental] Impact Statement (EIS) will not be

completed until at least 2003, with Study recommendations

taking many additional years to implement. Based on the

37a

history of storm damage at Fire Island over the past decade, we

fear that unless the Interim Project moves forward quickly, the

barrier island may be in danger of breaching. This may place

the safety of thousands of Long Islanders in jeopardy and may

result in damage to property, business and infrastructure, as well

as coastal ecosystems, including portions of the Fire Island

National Seashore and Wildness Area and the Great South Bay.

As we understand, the DOI has expressed concerns that the

Reformulation Study EIS will not be completed, and that the

interim project could be a stand-alone project for 30 years.

Attempts to resolve concerns over the scope and magnitude

of the interim project have been ongoing, however. we are told

that the parties have corr: to an impasse over the State’s

requirement for a 30-year life on the Interim Project, the COE’s

engineering and benefit analysis over this time frame, and FWS’

reluctance to authorize a 30-year “Interim” project without an

up-front EIS. Further, we have been informed that the COE and

New York State have negotiated several potential means for

resolving this issue, however, each time that an agreement on

the Interim project appears close, DOI representatives seem to

reconsider their position causing further delay.

The parties are committed to proceeding with the more

extensive Reformulation Study and to the ful] EIS that would

accompany the Study. However, the short term risk of

catastrophic storm damage has fostered a sense of urgency to

proceed with the Interim Project as quickly and prudently as

possible. We trust that a solution can be found that will

satisfactorily address the issues concerning the Interim Project.

Therefore, we would appreciate your assistance in helping to

resolve any outstanding issues of concern with respect to

preceding with the Interim Project

Thank you for your prompt attention to this matter.

38a

Sincerely,

ALFONSE M. D’AMATO

UNITED STATES SENATOR

DANIEL PATRICK MOYNIHAN

UNITED STATES SENATOR

RICK LAZIO MICHAEL FORBES

MEMBER OF CONGRESS MEMBER OF CONGRESS

39a

[D. Ct. Declaration of Clifford Jones, [, Project Manager;U.S.

Army Corps of Engineers]

DECLARATION OF CLIFFORD JONES, III

{District Court caption omitted]

CLIFFORD JONES III declares as follows:

1. Iam a Project Manager with the Programs and Project

Management Division, New York District. U.S. Army Corps of

Engineers (the “Corps”). This Declaration is respectfully

submitted in support of the motion of the Corps and co-

defendant United States Department of the Interior (“DOT”) to

dismiss complaint in this action. This Declaration is based upon

information known to me in my capacity as a Project Manager

for the Corps, and upon correspondence and other official

business records of the Corps.

2. My responsibilities as Project Manager include oversight

and coordination of New York District actions regarding

ongoing and planned shore erosion control and protection

projects sited on the south shore of Long Island, New York.

Among those projects is the Fire Island Interim Project, a

subject of this litigation (the “Project’’).

3. The Project concerns lands within the Fire Island

National Seashore. The Project plan currently is not mutually

acceptable to the Secretary of the Interior and the Secretary of

the Army. Moreover, the State of New York has not entered into

a written agreement to furnish cooperation for the Project in its

current form, or agreed to enter into such an agreement.

4. Based on the foregoing, the Corps does not intend to

40a

proceed with the Project at this time.

I declare under penalty of perjury that the foregoing

statements are true and accurate to the best of my knowledge

information and belief

Dated: New York, New York

October 24, 2001

/s/

Clifford Jones I

Project Manager, United States

Army Corps of Engineers

[D. Ct. Affidavit of Constantine J. Dilion, Superintendent of

Fire Island National Seashore]

DECLARATION OF CONSTANTINE J. DILLON

[District Court caption omitted]

CONSTANTINE J. DILLON declares as follows:

1. I am the Superintendent of Fire Island National

Seashore. This Declaration in respectfully submitted in support

of the motion of the United States Department of the Interior

(DOI) and co-defendant the Army Corps of Engineers, to

dismiss the complaint in this action. This Declaration is based

upon information known to me in my capacity as Superintendent

of Fire Island National Seashore, and upon correspondence and

other official business records of the National Park Service and

the Department of the Interior.

2. My _ responsibilities as Superintendent include

management of all aspects of Fire Island National Seashore

including daily operations, long term and short term planning,

completion of environmental compliance, and issuing of

permits. This includes ongoing and planned shore management

and protection projects sited within, or directly affecting, Fire

Island National Seashore, New York. Among those projects is

the Fire Island Interim Project, a subject of this litigation (the

“Project’’).

3.The Project concerns lands and waters within Fire Island

National Seashore. The Project plan as propose din the Draft

Environmental Impact Statement (DEIS) and Draft Decision

Document (DDD) issued by the Army Corps of Engineers is not

acceptable to the National Park Service.

I declare under penalty of perjury that the foregoing

42a

statements are true and accurate to the best of my knowledge

info. mation and belief.

Dated: New York, New York

November 27, 2001

/s/

CONSTANTINE J. DILLON

Superintendent, Fire Island

National Seashore

U.S. Army Corps of Engineers, New Yerk District

Fact Sheet,

(available at http://www.nan.usace.army.mil/

project/newyork/factsh/pdf/fimp.pdf) (last visited May 30, 2005)

Fire Island Inlet to Montauk Point, NY

FACT SHEET

DESCRIPTION: The authorized project provides for hurricane

protection and beach erosion control along five reaches of the

south shore of Long Island between Fire Island Inlet and

Montauk Point, a distance of approximately 83 miles. The

authorized project includes widening of the beaches along the

developed areas between Kismet and Mecox Bay to a minimum

width of 100 feet at an elevation of 14 feet above mean sea level

and raising of dunes to an elevation of 20 feet above mean sea

level from Fire Island Inlet to Hither Hills State Park. and at

Montauk and opposite Lake Montauk Harbor by artificial

placement of suitable sand; grass planting of the dunes and

interior drainage structures at Mecox Bay, Sagaponack Lake

and Georgica Pond. The project authorizes up to 50 groins

subject to future determination of their actual need, based on

experience. The project also authorizes Federal participation in

periodic nourishment. The project sponsor is the New York

State Department of Environmental Conservation.

BACKGROUND: In accordance with the National

Environmental Protection Act (NEPA), an Environmental

Impact Statement (EIS) was prepared and filed with USEPA in

January 1978. In March 1978, the Department of the Interior

(DOI) supported by other agencies referred the EIS to the

44a

Council on Environmental Quality (CEQ) as unacceptable. In

June 1978, CEQ recommended project reformulation to the

Chief of Engineers, who in turn directed the District to

reformulate the project. Reformulation was originally initiated

in 1980; however, because of difficulties between the Federal,

State and County in proceeding with Reach 2, Westhampton,

which at the time was the most vulnerable reach of the

authorized project, reformulation was suspended. Based on

letters of intent to support an interim plan for Reach 2, the

reformulation study was resumed.

AUTHORIZATION: The project is authorized by the Rivers and

Harbors Act of 14 July 1960 in accordance with House

Document 425 and subsequently modified by the River &

Harbor Act of 1962, and the Water Resources Development

Acts of 1974, 1986 and 1992.

STATUS: Completed Work:

MORICHES INLET TO SHINNECOCK INLET (Reach 2) ae“

1] groins constructed in the Westhampton Beach area in 1965.

* dditional 4 groins with beach and dune fill placed west of the

1 1-groin field in 1969-1970. The Westhampton Interim Project,

which included groin modification and beachfill within and

west of the 15-groin field was substantially completed in

December 1997.

SOUTHAMPTON to BEACH HAMPTON: (Reach 4) 2 groins

constructed at Georgica Pond in 1965.

Ongoing Work:

PROJECT REFORMULATION: Studies for a comprehensive

reformulation study were initiated in 1994 in accordance with an

45a

Initial Project Study Plan dated June 1993. The goal of the

reformulation study is to identify and evaluate alternative

methods of providing the authorized beach erosion control and

hurricane protection. An Environmental Impact Statement (EIS)

is being prepared for the reformulation effort. Initial work

involved data collection including beach profile surveys of the

83-mile shoreline and topographic mapping of flood prone

areas. Studies are continuing including coastal processes

modeling, storm damage assessments, environmental data

collection, plan formulation alternative screening and potential

mitigation measures. Based on initial scoping sessions for the

reformulation study, an Interagency Reformulation Group was

developed as well as several Technical Management Groups to

handle specific aspects of the overall] study. As a result, the

Project Study Plan was revised dated June 1996. The

cooperating agencies, including the State of New York and the

US Department of Interior, have discussed further revisions to

the reformulation study plan resulting in the current Project

Management Plan dated June 2000, which increases the study

scope, time and cost of the prior plan. A Design Agreement has

been signed to cost-share the increased costs with the State of

New York.

Draft Report / EIS November 2006

Scheduled Study completion: June 2007

Total Study Cost: $24 million

INTERIM ACTIONS: State, local and congressional interests

have requested that the District evaluate plans to provide

immediate remedial action for vulnerable areas. These

interim actions would be modified, as necessary, based on the

recommendations of the reformulation study.

46a

BREACH CONTINGENCY PLAN: Provides a mechanism for

rapid breach closure of the barrier islands throughout the

83-mile project area. A Breach Contingency Plan (BCP) Report

was approved in February 1996. Under the approved generic

Project Cooperation Agreement, the District Commander is

authorized to execute specific PCA’s with the State to close

breaches after coastal storms.

WESTHAMPTON INTERIM PROJECT: Provides interim

protection to the Westhampton Beach area west of Groin 15 and

affected mainland communities north of Moriches Bay. The

project provides for a protective beach berm and dune,

tapering of existing groins 14 and 15 and construction of

an intermediate groin (14a). The project also includes periodic

nourishment, as necessary to ensure the integrity of the project

design, for up to 30 years (2027). Initial construction was

completed in December 1997 at a cost of approximately

$20 million. The project has performed better than

anticipated in terms of anticipated cost, project performance and

beneficial environmental impacts. The first renourishment began

in November 2000 and was substantially completed in February

2001 at a cost of approximately $5 million. Coastal and

environmental monitoring are continuing. The second

renourishment is underway. The contract was awarded in

September 2004 at acost of $4.5 M. Sand placement operations

began in October 2004 and will conclude in December 2004.

FIRE ISLAND INTERIM STUDY: The Corps, the State of

New York and the Department of Interior have been engaged in

extensive coordination to develop a mutually acceptable interim

plan along the Fire Island barrier island to provide protection

until the implementation of the recommendations of the overall

47a

reformulation study. As specified in a partnering agreement

between the Corps and the USDOL, any proposed interim project

would consist of initial beachfill placement with one

renourishment for a period not to exceed 6 years. The Draft

Decision Document and DEIS were submitted for public review

in December 1999 and a public meeting was held in January

2000. Based on the lack of a non-federal sponsor for this

project, efforts will focus on development of a

comprehensive plan thru the reformulation study. The

extensive comments from the USDOI and other resource

agencies as well as the general public on the Fire Island interim

project will be incorporated in the preparation of the

Reformulation study EIS.

WEST OF SHINNECOCK INTERIM PROJECT: An

evaluation has been completed to provide interim protection to

the area immediately west of Shinnecock Inlet, which is

seriously eroded and a potential breach area (where the ocean

and the bay meet). The proposed project is intended to provide

protection to bridge the gap until the implementation of the

recommendations of the reformulation study; therefore, it is

currently proposed that an interim project would consist of

initial beachfill placement with two renourishments for a period

not to exceed 6 years. Based on comments from the State of

New York, a biological sampling of the proposed offshore

borrow area was initiated in April 1999; piping plover

monitoring is ongoing for the placement area. The Draft

Decision Document and Draft Environmental Assessment was

submitted for public review in December 1999. The State of

New York supports this project and has agreed to provide the

non-Federal share of the project cost. The PCA was executed

December 2003. A contract was awarded in September 2004 at

a cost of $4.3 M. Sand placement is scheduled to begin in

December 2004 and be completed in February 2005.

CONTACT: Mr. Clifford Jones, Project Manager, U.S. Army

Corps of Engineers, New York District, 26 Federal Plaza, New

York, NY 10278

tel: 212-264-2055

mailto:clifford.jones @nan02.usace.army.mil

web: http://www.nan.usace.army.mil

[Press Release of National Parks Conservation Association,

March 14, 2000]

National Parks Magazine

Press Room

National Parks Reports

Park Watcher Newsletters

Other Publications

NPCA Press Releases

FOR IMMEDIATE RELEASE: March 14, 2000

CONTACT: Laura Loomis, NPCA (202) 223-6722, x233

Park Watchdog Group Honors Constantine J. Dillon

PRS Superintendent Receives $2,500 Award for Exemplary

Work to Protect Fire Island NS

Patchoque, NY — The National Parks Conservation Association

(NPCA) today presented the 2000 Stephen Tyng Mather Award

to Constantine J. Dillon, Superintendent of Fire Island National

Seashore. The $2,500 award was presented by Laura Loomis,

NPCA Acting Director of Visitor - Use and Experience. Named

for the first director of the National Park Service (NPS), the

Mather award recognizes those individuals who have

demonstrated initiative and resourcefulness in promoting

environmental principles and protecting the natural resources of

a park in a situation where others have hesitated.

The battle to protect Fire Island began when the Army

Corps of Engineers tried to implement a shoreline stabilization

50a

project to protect private property. Insisting that a complete

environmental impact statement be performed with proper

alternatives and public comment, Dillon faced castigation from

the press, the public and elected officials. These pressures

culminated in a press conference in front of the park that called

for his resignation.

Dillon has also faced extensive public and congressional

pressure to use pesticides in the Fire Island Wilderness Area, the

only federally designated wilderness in New York state. He

maintained the protection of the wilderness by developing a

proactive plan to monitor mosquitos and provide public

information on mosquito-borne diseases to alleviate public

concern, thus keeping pesticides out of the protected ecosystem.

Dillon also has initiated other activities that led to the expansion

of the wilderness area and improved management of the park.

He also created partnerships with other agencies and private

organizations that resulted in the restoration of the park's salt

marshes.

“Constantine Dillon exemplifies the type of persistence a

Mather award winner must have,” said Tom Kleran, NPCA

President. “He placed the welfare of the park above his own and

fought for what was best for the resource against strong

opposition.”

The National Parks Conservation Association is America’s

only private nonprofit organization dedicated solely to

protecting, preserving, and enhancing the National! Park System,

NPCA was founded in 1919 and today has more than 400,000

members. NPCA- Protecting Parks for Future Generations.

A library of national park information, including fact sheets,

congressional testimony, position statements, press releases and

media alerts, can be found on NPCA’s World Wide Web site at

www.npca.org.

Sla

a ee

Supreme Gout, Uo

FILER

AUG 4 - 2005

Jn the Supreme Court of the United States

NEW YORK COASTAL PARTNERSHIP, INC., ET AL.,

PETITIONERS

eM Gs 3 Vv.

DEPARTMENT OF THE INTERIOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

KELLY A. JOHNSON

Acting Assistant Attorney

General

WILLIAM B. LAZARUS

KATHERINE J. BARTON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioners have standing to seek a

judicial order directing federal agencies to adopt and

submit to Congress an erosion-control plan for New

York’s Fire Island, when those agencies have broad

discretion to craft a plan that need not address peti-

tioners’ alleged harm, and when the federal agencies’

implementation of any plan is legally contingent upon a

non-federal party’s agreement to participate in funding

and carrying out the plan.

2. Whether the district court had jurisdiction over

petitioners’ claim to enjoin governmental actions that

allegedly effected a taking of their property, when peti-

tioners have not sought just compensation in the Court

of Federal Claims as authorized under the Tucker Act,

28 U.S.C. 1491, and do not allege that Congress has

withdrawn the Tucker Act remedy.

TABLE OF CONTENTS

Opinions below

Jurisdiction

Statement

Conclusion

TABLE OF AUTHORITIES

Cases:

Allen v. Wright, 468 U.S. 737 (1984)

American Rivers & Idaho Rivers United, In re,

372 F.3d 413 (D.C. Cir. 2004)

Bennett v. Spear, 520 U.S. 154 (1997)

Bluewater Network, Inve, 235 F.3d 1305 (D.C. Cir.

Catron County Bd. of Commerce v. United States

Fish & Wildlife Serv., 75 F.3d 1429 (10th Cir.

1996)

Chateaugay Corp., In re, 53 F.3d 478 (2d Cir.),

cert. denied, 516 U.S. 913 (1995)

Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971)

City of Los Angeles v. Lyons, 461-U.S. 95 (1983)

Committee to Save the Rio Hondo v. Lucero, 102

F.3d 445 (10th Cir. 1996)

Douglas County v. Babbitt, 48 F.3d 1495 (9th

Cir. 1995), cert. denied, 516 U.S. 1042 (1996)

Eastern Enterprises v. Apfel, 524 U.S. 498

(1998)

Federal Election Comm’n v: Akins, 524 U.S. 11

(1998)

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987)

Cases—Continued:

Florida Audubon Soc’y v. Bentsen, 94 F.3d 658

(D.C. Cir. 1996)

Forest Guardians v. Babbitt, 174 F.3d 1178 (10th

Heartwood, Inc. v. United States Forest Serv.,

230 F.3d 947 (7th Cir. 2000)

Hercules, Inc. v. EPA, 938 F.2d 276 (D.C. Cir.

Kotteakos v. United States, 328 U.S. 750 (1946)

Lujan v. Defenders of Wildlife, 504 U.S. 555

8, 9, 10, 11, 12, 13, 14

Lujan v. National Wildlife Fed’n, 497 U.S. 871

Marathon Oil Co. v. Lajan, 937 F.2d 498 (10th

Cir. 1991)

National Credit Union Admin. v. First Nat'l

Bank & Trust Co., 522 U.S. 479 (1998)

National Parks Conservation Ass’n v. Manson,

No. 04-5327, 2005 WL 1540729 (D.C. Cir. July 1,

Neighbors of Cuddy Mountain-v. Alexander, 303

F.3d 1059 (9th Cir. 2002)

North Shore Gas Co. v. EPA, 930 F.2d 1239 (7th

Cir. 1991)

Norton v. Southern Utah Wilderness Alliance,

124 S. Ct. 2373 (2004)

Preseault v. ICC, 494 U.S. 1 (1990)

Pritikin v. Department of Energy, 254 F.3d 791

(9th Cir. 2001)

Pye v. United States, 269 F.3d 459 (4th Cir.

Ruckelshaus v. Monsanto, 467 U.S. 986 (1984)

Simon v. Eastern Ky. Welfare Rights Org.,

416 U.S. 26 (1976)

Society Hill Towers Owners Ass’n v. Rendell, 210

F.3d 168 (3d Cir. 2000)

Cases—Continuea:

US Ecology, Inc. v. Department of the Interior,

231 F.3d 20 (D.C. Cir. 2000)

United Mine Workers, In re, 190 F.3d 545 (D.C.

United States v. Richardson, 418 U.S. 155 (1974)

United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985)

University Med. Ctr. v. Shalala, 173 F.3d

438 (D.C. Cir. 1999)

Williamson County Reg’l Planning Comm'n v.

Hamilton Bank, 473 U.S. 172 (1985)

Wisconsin v. FERC, 192 F.3d 641 (7th Cir.

Administrative Procedure Act, 5 U.S.C.

BE Is Garrick tac tudsitneitalesicdtaleniptiienidiag nadanaeteieniacsnibeminnnanenie

Endangered Species Act, 16 U.S.C. 1531 et seq.

Fire Island National Seashore Act (FINSA),

a ne aio caaisi leet acisiedepiniacisddaaiiebinlipeninsnts

16 U.S.C. 459e

16 U.S.C. 459e-1(e)

16 U.S.C. 459e-6(a)

16 U.S.C. 459e-7(a)

Flood Control Act of 1970, Pub. L. No. 91-611,

Tit. II, 84 Stat. 1824

§ 221, 84 Stat. 1831 (42 U.S.C. 1962d-5b)

River and Harbor Act of 1960, Pub. L. No. 86-645,

§ 101, 74 Stat. 483

Tucker Act, 28 U.S.C. 1491(a)(1)

=

Vi

Statutes—Continued: Page

Water Resources Development Act of 1974,

Pub. L. No. 98-251, Tit. 1, 84 Stat. 12 ...........cccccccsscsssersecevee 3

Water Resources Development Act of 1986,

Pub. L. No. 99-662, § 103(c)(5), 100 Stat. 4085 ................. 5

Water Resources Development Act of 1999,

Pub. L. No. 106-53, § 342, 113 Stat. 308 ............ccssssesseeeees

Wilderness Act, 16 U.S.C. 1131-1136 0... cece teeeeeeee

TSN bel >) RRS RRR a Raat Cie eRe at we

BE EG BRI i isssseceicetsnntinneercacasisbevsiipctgnentitnihicniasibobund

~~ >

In the Supreme Court of the Gnited States

No. 04-1612

NEW YORK COASTAL PARTNERSHIP, INC., ET AL.,

PETITIONERS

Vv.

DEPARTMENT OF THE INTERIOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-9a)>-——

is reported at 341 F.3d 112. The opinion of the district

court (Pet. App. 10a-22a) is unreported-

JURISDICTION

The judgment of the court of appeals was entered on

August 18, 2003. A petition for rehearing was denied

on January 14, 2005. On April 8, 2005, Justice Ginsburg

granted an application to extend the time within which

to file a petition for a writ of certiorari to and including

May 31, 2005, and the petition was filed on that date.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

(1)

2

STATEMENT

Petitioners filed suit in federal district court, alleging

that the federal respondents’ failure to implement

adequate erosion-control measures at Fire Island

National Seashore violates various federal statutes and

effects a taking of petitioners’ property. Petitioners

sought declaratory and injunctive relief to compel the

federal respondents to implement erosion-control

measures: The district court dismissed petitioners’

claims, Pet. App. 10a-22a, and the court of appeals

affirmed, id. at la-9a.

l. a. In 1960, Congress authorized the United States

Army Corps of Engineers (Corps) to undertake a shore-

line erosion-control project on the Atlantic shore of

Long Island, from Fire Island Inlet to Montauk Point.

See River and Harbor Act of 1960, Pub. L. No. 86-645,

Tit. I, § 101, 74 Stat. 483. In subsequent legislation,

Congress modified the original authorization to require

the participation of the Secretary of the Interior in the

development of the Fire Island Inlet to Montauk Point

project. In 1964, Congress enacted the Fire Island

National Seashore Act (FINSA), 16 U.S.C. 459e et seq.;

see Pet. App. 10a-lla, which established Fire Island as

a unit of the National Park System and required the

Secretary to administer the Seashore “with the pri-

mary aim of preserving the natural resources located

there.” 16 U.S.C. 459e-6(a). With respect to the shore-

line erosion-control project, FINSA provides:

The authority of the Chief of Engineers, Depart-

ment of the Army, to undertake or contribute to

shore erosion control or beach protection measures

on lands within the Fire Island National Seashore

shall be exercised in accordance with a plan that is

mutually acceptable to the Secretary of the Interior

3

and the Secretary of the Army and that is consistent

with the purposes of sections 459e to 459e-9 of this

title.

16 U.S.C. 459e-7(a). The purposes of FINSA include

the preservation of “relatively unspoiled and unde-

veloped beaches, dunes, and other natural features.” 16

U.S.C. 459e.

During the 1970s, Congress enacted two laws that

refined pre-existing requirements for non-federal

particiation in the Fire Island Inlet to Montauk Point

project. In the Flood Control Act of 1970, Pub. L. No.

91-611, Tit. I, § 221, 84 Stat. 1831 (42 U.S.C. 1962d-5b),

Congress generally prohibited the commencement of

any water resource project constructed or funded by

the Corps “until each non-Federal interest has entered

into a written agreement with the Secretary of the

Army to furnish its required cooperation for the project

or the appropriate element of the project, as the case

may be.” Subsequently, in the Water Resources

Development Act of 1974, Pub. L. No. 93-251, § 31, 88

Stat. 21, Congress specifically addressed the Fire

Island Inlet to Montauk Point erosion-control project,

requiring that

non-Federal interests shall (1) contribute 30 per

centum of the first cost of the project, including the

value of lands, easements, and rights-of-way; (2)

hold and save the United States free from damages

due to the construction works; and (3) maintain and

operate the improvements in accordance with regu-

lations prescribed by the Secretary of the Army.

4

In 1986, Congress increased the required local share of

costs to 35%. See Water Resources Development Act

of 1986, Pub. L. No. 99- 662, § 103(c)(5), 100 Stat. 4085.’

b. The Corps has worked for many years to develop

a comprehensive plan for the Fire Island Inlet to Mon-

tauk Point project. In 1995, the Corps designed the

Fire Island Interim Project (FIIP) to serve as an

interim erosion-control measure pending completion of

a comprehensive study. See Pet. App. 2a, lla. The

FIIP would have “entail[ed] using sand to construct or

enhance various dunes and beaches on the island,” at an

estimated total cost of $78.8 million. Jd. at 2a. The

FIIP was set forth in a draft decision document and

draft environmental impact statement (DEIS) prepared

by the Corps in 1999. /d. at 1la.

In 1999, while the Corps was developing the draft

FIIP, Congress enacted legislation requiring “the Sec-

retary [of the Army], in coordination with the heads of

other Federal departments and agencies, to complete

all procedures and reviews expeditiously and to adopt

and submit to Congress, not later than 120 days after

the date of enactment of this Act, a mutually acceptable

! In 1980, Congress designated more than 1300 acres of the

Fire Island National Seashore for inclusion in the National Wilder-

ness Preservation System. See Act of Dec. 23, 1980, Pub. L. No.

96-585, 94 Stat. 3379. Under the provisions of the Wilderness Act,

16 U.S.C. 1131-1136, the Fire Island Wilderness is to be managed

to “preserv[e] the wilderness character of the area,” 16 U.S.C.

1133(b), and is to be administered “for the use and enjoyment of

the American people in such a manner as will leave [the area} un-

impaired for future use and enjoyment as wilderness,” 16 U.S.C.

1131(a). The statute further provides, however, that “[w]ilderness

designation shall not preclude the repair of beaches that occur in

the wilderness area, in order to prevent the loss of life, flooding

and other severe economic and physical damage to the Great South

Bay and surrounding areas.” § (d), 94 Stat. 3379.

5

shore erosion plan” for Fire Island. Water Resources

Development Act of 1999 (WRDA), Pub. L. No. 106-53,

§ 342, 113 Stat. 308.2 In mid-December, the Army

informed Congress that it had released the DEIS on

the FIIP on December 6, 1999. C.A. App. A-189. The

Corps stated that it planned to complete the decision

document during the spring of 2000 and that it expected

to be “in a position to sign a Record of Decision by July

2000.” Ibid. Subsequently, however, both the Corps

and the Department of the Interior (DOI) decided not

to proceed with the FIIP, and the State of New York

did not agree to act as the requisite “non-federal in-

terest” for its implementation. Pet. App. 11a.

2. Petitioners filed suit in federal district court,

seeking declaratory and injunctive relief. Petitioners

named as defendants various federal agencies, the State

of New York, and several federal and state government

officials. The complaint alleged that the federal respon-

dents, by declining to go forward with the FIIP, had (1)

taken petitioners’ property, in violation of the Fifth

2 Section 342 of the WRDA of 1999 states in its entirety:

The project for combined beach erosion control and

hurricane protection, Fire Island Inlet to Montauk Point,

Long Island, New York, authorized by section 101(a) of the

River and Harbor Act of 1960 (74 Stat. 483) and modified by

the River and Harbor Act of 1962, the Water Resources

Development Act of 1974, and the Water Resources Develop-

ment Act of 1986, is further modified to direct the Secretary,

in coordination with the heads of other Federal departments

and agencies, to complete all procedures and reviews expedi-

tiously and to adopt and submit to Congress, not later than

120 days after the date of enactment of this Act, a mutually

acceptable shore erosion plan for the Fire Island Inlet to

Moriches Inlet reach of the project.

113 Stat. 308.