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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0970%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 820

## Text

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 coas

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0970%3A1. Public record. Not legal advice.