Opposition Brief — New York Coastal Partnership, Inc. v. Department of the Interior

6

Amendment to the United States Constitution; (2)

violated the Endangered Species Act of 1973 (ESA), 16

U.S.C. 1531 et seq.; (3) breached their statutory and

fiduciary duties under several other federal statutes;

and (4) violated the Administrative Procedure Act

(APA), 5 U.S.C. 701 et seg. See Pet. App. 11a-12a.

The district court granted the federal respondents’

motion to dismiss petitioners’ complaint. Pet. App. 10a-

22a. The-district court rejected petitioners’ takings

claim, explaining that equitable relief on that cause of

action was unavailable because petitioners had not

invoked the existing statutory mechanisms to obtain

just compensation for the alleged takings. Id. at 12a-

13a. The court dismissed the ESA claim because peti-

tioners had failed to identify any conduct in which the

federal respondents had engaged that could serve as

the basis for an action under the ESA. Id. at 15a-17a.

With respect to petitioners’ claims that the federai

respondents had breached their obligations under other

statutes by failing to implement the FIIP, the district

court held that petitioners’ claims failed because none

of the relevant statutes contained a waiver of the

United States’ sovereign immunity. /d. at 17a-18a, 19a-

20a. Finally, the court held that petitioners could not

bring suit under the APA to compel the federal respon-

dents to develop an erosion-control plan pursuant to the

FINSA. /d. at 20a-2la. The court concluded that,

because “[t]he DOI and the Corps have discretion as to

the best manner to effect the FINSA’s mission,” 2d. at

20a, those agencies’ “inaction with regard to the FIIP is

precluded from judicial review,” id. at 21a.

3. The court of appeals affirmed. Pet. App. 1la-9a.

The court held that petitioners’ claims were subject to

dismissal because petitioners lacked standing to sue.

Id. at 5a. The court assumed, without deciding, that

7

petitioners’ alleged injuries were actual or imminent.

Id. at 5an.1.° The court concluded, however, that peti-

tioners could not satisfy the redressability requirement

of standing doctrine because the court could “only

speculate whether the remedy they seek would redress

their purported injuries.” /d. at 5a. The court of ap-

peals explained:

[Petitioners] identify no statutory authority that

would specifically require [the federal respondents]

to adopt the FIIP. 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 an interim

plan spanning a five-year period. Accordingly, even

were the FIIP successful, at best, it would be termi-

nated and shortly replaced by another program

whose chances of success are only speculative at this

point in time.

Id. at 5a-6a.

The court of appeals further explained that peti-

tioners’ claims under various federal statutes could not

go forward because petitioners “identify no duty in any

of these statutes that would require [the federal re-

spondents] to act in a manner that would likely redress

the injury of which they complain.” Pet. App. 6a; see zd.

at 6a-8a. With respect to the WRDA in particular, the

court found that, although the statute “contains express

provisions for specific action,” it does not require “the

adoption of any specific plan” or a “successful shore

3 Petitioners’ complaint alleged that groins and stabilization

projects previously installed by the federal government had caused

or contributed to Fire Island’s erosion problems. See C.A. App. A-

50 to A-52. Whether that causal link exists is a matter of dispute.

See Affidavit of James T.B. Tripp § 11 (Nov. 26, 2001).

8

erosion plan,” and the plan adopted by the relevant

federal agencies “need not be acceptable to [peti-

tioners].” Jd. at 8a. For that reason, the court con-

cluded, the federal respondents’ “compliance with the

[WRDA] would not necessarily make it likely that any

plan adopted and submitted to Congress would remedy

Fire Island’s shore erosion problem.” bid.

With respect to petitioners’ claim that the federal

respondents’ “failure to prevent shore erosion on Fire

Island constitutes a de facto taking,” the court of

appeals recognized that “the Takings Clause prohibits

the government from seizing private property without

providing just compensation,” and the court left open

the possibility that petitioners might be able to obtain a

compensation remedy. Pet. App. 9a (internal quotation

marks omitted). The court held, however, that peti-

tioners’ current takings claims could not go forward,

both because petitioners “do not have standing to seek

an equitable remedy in this situation,” and because

petitioners had failed to establish that their potential

remedy at law was inadequate. bid. With respect to

the adequacy of petitioners’ remedy at law, the court

noted that “taking claims against the Federal Govern-

ment are premature until the property owner has

availed itself of the process provided by the Tucker

Act.” Id. at 9a n.8 (quoting Preseault v. ICC, 494 U.S.

1, 11 (1990)).

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or any

other court of appeals. Further review is not war-

_ ranted.

1. In Lwjan v. Defenders of Wildlife, 504 U.S. 555

(1992), this Court explained that an Article III case or

9

controversy exists only if (a) the plaintiff “ha[s] suf-

fered an ‘injury in fact,’” (b) that injury is “fairly trace-

able to the challenged action of the defendant, and not

the result of the independent action of some third party

not before the court,” and (c) it is “likely, as opposed to

merely speculative, that the injury will be redressed by

a favorable decision.” Jd. at 560-561 (citations, brac-

kets, ellipses, and internal quotation marks omitted).

Petitioners do not contend that they can establish

standing (and, in particular, redressability) under that

framework. Rather, petitioners argue (Pet. 13) that

their alleged injury is a “procedural” harm, and that the

redressability inquiry is therefore governed by a less

demanding standard.

Petitioners’ contention lacks merit for three reasons.

First, the federal respondents’ failure to adopt a “plan”

to guide their overall Fire Island erosion-control efforts

is quite different from the type of procedural violation

as to which this Court has held a relaxed standard of

redressability to be applicable. Second, even in cases

involving alleged violations of procedural requirements,

a plaintiff cannot establish standing if, as in this case, it

is purely speculative whether the relief sought will

remedy or prevent the actual or threatened injury.

Finally, petitioners cannot satisfy the redressability

requirement in this case because the implementation of

any erosion-control plan for Fire Island under the

WRDA is contingent on the independent action of the

State of New York, and petitioners cannot show that

the State will agree to help fund and implement such a

plan.

a. The court of appeals assumed, without deciding,

that petitioners had sufficiently alleged an actual or

imminent injury. Pet. App. 5a n.1. The court held,

however, that petitioners could not show that the

10

alleged injury would be redressed by a favorable

judicial ruling because the court could only “speculate”

whether an erosion-control plan adopted by the federal

respondents would remedy petitioners’ harm. /d. at 5a.

The court found in particular that “there [wa]s no

indication that the FIIP would, in fact, remedy Fire

Island’s erosion problems.” Jbid. The court further

observed that, even if the federal respondents adopted

and submitted to Congress an erosion-control plan that

was acceptable to the federal agencies involved, the

WRDA did not require the adoption of any specific

plan, or of a plan that would be successful or acceptable

to petitioners. Jd. at 8a.*

b. This Court has held that a “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.”

Defenders of Wildlife, 504 U.S. at 572 n.7. As an

example of that principle, the Court stated that “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

4 Indeed, petitioners’ complaint alleged that the erosion-

control measures purportedly favored by the Department of the

Interior—i.e., the acquisition and removal of beachfront properties

rather than the structural beach nourishment projects proposed by

the Corps (C.A. App. A-57 to A-58)—are “contrary to the intent of

Congress and to sound engineering principles” and would not

“mitigate the effects of the accelerated erosion and physical in-

vasions caused by the Defendants prior projects.” Jd. at A-57.

Thus, petitioners’ own allegations demonstrate that it is highly

speculative whether the adoption of a shoreline erosion-control

plan mutually acceptable to the Corps and the DOI would redress

petitioners’ harm.

1]

any certainty that the statement will cause the license

to be withheld or altered.” Jbid. The Court in

Defenders of Wildlife described “the archetypal pro-

cedural injury: an agency’s failure to prepare a sta-

tutorily required environmental impact statement be-

fore taking action with potential adverse consequences

to the environment.” National Parks Conservation

Ass’n v. Manson, No. 04-5327, 2005 WL 1540792, at *8

(D.C. Cir. July 1, 2005) (citing Defenders of Wildlife, 504

U.S. at 752 n.7). Almost all of the procedural standing

cases on which petitioners rely involved similar chal-

lenges to an agency’s failure properly to complete an

environmental review in accordance with legal require-

ments.” See Catron County Bd. of Comm’rs v. United

States Fish & Wildlife Serv., 75 F.3d 1429, 1433 (10th

Cir. 1996); Society Hill Towers Owners’ Ass’n v.

Rendell, 210 F.3d 168, 172-173 (3d Cir. 2000); Cantrell

v. City of Long Beach, 241 F.3d 674, 676-677 (9th Cir.

5 Many of the cases on which petitioners rely do not address the

question of standing. Those include /n re Bluewater Network, 234

F.3d 1305 (D.C. Cir. 2000); Forest Guardians v. Babbitt, 174 F.3d

1178 (10th Cir. 1999); Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402 (1971); In re American Rivers & Idaho Rivers

United, 372 F.3d 413 (D.C. €ir. 2004); Neighbors of Cuddy

Mountain v. Alexander, 303 F.3d 1059 (9th Cir. 2002); In re United

Mine Workers, 190 F.3d 545 (D.C. Cir. 1999); Marathon Oil Co. v.

Lujan, 937 F.2d 498 (10th Cir 1991); Hercules, Inc. v. EPA, 938

F.2d 276 (D.C. Cir. 1991). Others that address standing do not in-

volve allegations of procedural injury. See Federal Election

Comm'n v. Akins, 524 U.S. 11 (1998) (informational standing);

Bennett v. Spear, 520 U.S. 154 (1997); United States v. Richardson,

418 U.S. 166 (1974) (taxpayer standing); National Credit Union

Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479 (1998)

(prudential standing); Wisconsin v. FERC, 192 F.3d 642 (7th Cir.

1999); North Shore Gas Co. v. EPA, 930 F.2d 1239 (7th Cir. 1991)

(no discussion of procedural standing).

12

2001); Committee to Save the Rio Hondo v. Lucero, 102

F.3d 445, 448 (10th Cir. 1996); Douglas County v.

Babbitt, 48 F.8d 1495, 1497-1499 (9th Cir. 1995), cert.

denied, 516 U.S. 1042 (1996); Florida Audubon Soc’y v.

Bentsen, 94 F.3d 658, 662 (D.C. Cir 1996); Heartwood,

Inc. v. United States Forest Serv., 230 F.3d 947, 950-951

(7th Cir. 2000); Pye v. United States, 269 F.3d 459, 462-

464 (4th Cir. 2001).

The hypothetical situation described in Defenders of

Wildlife involved a discrete on-the-ground action—

construction of a federally licensed dam. See 504 U.S.

at 572 n.7. The Court stated that, so long as a plaintiff

can demonstrate a likelihood of injury from consum-

mation of the relevant project, he can challenge the

proposed action on the ground that the agency’s

decision-making processes were legally defective, even

if he “cannot establish with any certainty” that use of

appropriate procedures would have produced a dif-

ferent outcome. /bid. Petitioners’ complaint, by con-

trast, did not focus on specific on-the-ground agency

actions, but instead alleged in general terms that the

federai respondents had failed to take adequate steps to

fulfill their statutory obligations to protect the Fire

Island coastline. See, e.g.,C.A. App. A-70.

In that respect, petitioners’ suit resembles the

generalized challenges to overall agency programs that

this Court has held to be beyond the scope of judicial

authority. See Norton v. Southern Utah Wilderness

Alliance, 124 S. Ct. 2373, 2378-2384 (2004) (SUWA);

Lujan v. National Wildlife Fed’n, 497 U.S. 871, 891

(1990). Although petitioners characterize their suit as

“an effort to compel ‘discrete agency action that [Re-

spondents are] required to take,” Pet. 12 (quoting

SUWA, 124 S. Ct. at 2379), the “discrete agency action”

to which they refer is not a concrete erosion-control

13

measure, but rather the adoption of a “plan” pursuant

to the WRDA. The gravamen of petitioners’ claim is

that the adoption of such a plan would alter the federal

respondents’ overall erosion-control efforts in a way

that would be beneficial to petitioners’ interests.

Nothing in Defenders of Wildlife suggests that a plain-

tiff may bring a claim of this nature without satisfying

generally-applicable standards of redressability.

c. Petitioners would not have standing to sue in this

ease even if their claims were subject to the relaxed

redressability requirement that, under Defenders of

Wildlife, is applicable to claims of “procedural” irregu-

larity. A plaintiff who alleges a procedural violation can

assert his claim “without satisfying all the normal

standards for redressability and immediacy,” and he

need not “establish with any certainty” that compliance

with the relevant procedural requirements would have

produced a more favorable outcome. Defenders of

Wildlife, 504 U.S. at 572 n.7 (emphasis added); cf.

Kotteakos v. United States, 328 U.S. 750, 765 (1946)

(non-constitutional error provides basis for reversal in

federal criminal case if appellate court concludes that

error affected the outcome or is left in “grave doubt” as

to whether such an effect occurred). Nothing in De-

fenders of Wildlife suggests, however, that the redress-

ability requirement is eliminated altogether when the

plaintiff alleges a procedural violation. Absent some

reasonable prospect that a favorable judicial ruling will

prevent or remedy his alleged injury, a plaintiff would

lack the “personal stake in the outcome” of the suit,

City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983)

(quoting Baker v. Carr, 369 U.S. 186, 204 (1962)), that

Article III demands.

In the instant case, the court of appeals noted

petitioners’ failure to identify any provision of law

14

requiring the federal respondents to take measures

that would “likely” address petitioners’ asserted harms.

See Pet. App. 6a, 7a. The court also stated, however,

that it could “only speculate whether the remedy [peti-

tioners] seek would redress their purported injuries”

because “there is no indication that the FIIP would, in

fact, remedy Fire Island’s erosion problems.” I/d. at 5a.

There is consequently no reason to suppose that the

outcome of this case would have been different if the

court of appeals had applied the less demanding stan-

dard of redressability applicable to claims of procedural

infirmity.

d. When a plaintiff alleges that he has been injured

by the unlawful conduct of the federal government, and

the effectiveness of a judicial order in alleviating the

plaintiffs harm depends on the voluntary choices of

non-federal actors, “it becomes the burden of the

plaintiff to adduce facts showing that those choices have

been or will be made in such manner as to * * *

permit redressability of injury.” Defenders of Wildlife,

504 U.S. at 562; see, e.g., Simon v. Eastern Ky. Welfare

Rights Org., 426 U.S. 26, 42 (1976); Allen v. Wright, 468

U.S. 737, 757-758 (1984); Pritikin v. Department of

Energy, 254 F.3d 791, 799-801 (9th Cir. 2001); US

Ecology, Inc. v. Department of the Interior, 231-F.3d

20, 24-25 (D.C. Cir. 2000); University Med. Ctr. v.

Shalala, 173 F.3d 438, 440-442 (D.C. Cir. 1999). Peti-

tioners cannot satisfy that requirement.

Under the Flood Control Act of 1970, Pub. L. No. 91-

611, Tit. II, 84 Stat. 1824, and the Water Resources

Development Act of 1974, Pub. L. No. 93-251, Tit. I, 84

Stat. 12, implementation of any plan developed by the

federal respondents cannot proceed until a non-federal

party agrees to fund at least 35% of the project, to

maintain and operate any improvements, and to enter

15

into a written agreement to comply with those require-

ments. See pp. 3-4, supra. The allegations of peti-

tioners’ own complaint suggest that the State of New

York is unlikely to agree to participate in the FIIP that

petitioners seek to have adopted. Petitioners’

complaint alleged that the State’s Department of

Environmental Conservation and Department of State

“acted individually and in concert [with the United

States Department of the Interior] te prevent bringing

the review process [for the FIIP] to closure.” C.A.

App. A-57. The complaint further alleged that the

“State agency defendants have continued to delay re-

sponses [to the draft FIIP],” primarily because the

Department of State “supports the DOI’s objective of

removing the over 300 houses in the dune areas before

any breach [sic] nourishment takes place.” Jd. at A-60.

The complaint also alleged that the state agencies have

“frustrated the Corps’ efforts to bring the FIIP to

fruition,” including by refusing to submit formal com-

ments on the FIIP DEIS. Jd. at A-60 to A-61. Those

allegations are inconsistent with any contention that

New York officials are likely to exercise their own

discretionary authority in a manner that would permit

redress of petitioners’ injuries through a judicial order

directed at the federal respondents.°

2. Petitioners contend that this Court should grant

review to “clarify that district courts are not cate-

6 Although petitioners’ complaint sought an injunction com-

pelling New York officials to cooperate with the federal respon-

dents (see C.A. App. A-73), petitioners’ claims against the state

defendants were dismissed by the district court, and that ruling

was affirmed by the court of appeals. In this Court, petitioners do

not seek review of any question concerning the discretion of state

officials to decline to approve or participate in a WRDA plan

deemed mutually acceptable by the relevant federal agencies.

16

gorically barred from entertaining suits for declaratory

or injunctive relief under the Takings Clause.” Pet. 26

(capitalization omitted). The question whether such

suits are “categorically barred” is not presented in this

case, and the court of appeals correctly held that peti-

tioners’ takings claim could not go forward.

a. The court of appeais explained that petitioners’

takings claim was properly dismissed in part because

petitioners “do not have standing to seek an equitable

remedy in this situation.” Pet. App. 9a. That holding is

correct for the reasons stated above. See pp. 9-15,

supra. Regardless of the source of law on which a

plaintiffs claim is based, a federal court may entertain a

suit for equitable relief only if the plaintiff can establish

a sufficient probability that a favorable judicial ruling

would redress its injury. That limitation on the federal

judicial power provides an adequate and independent

ground for dismissal of petitioners’ takings claim.

b. As an additional basis for affirming the dismissal

of petitioners’ takings claim, the court of appeals stated

that petitioners had failed to demonstrate the

inadequacy of their remedy at law, Pet. App. 9a, and it

explained that “taking claims against the Federal

Government are premature until the property owner

has availed itself of the process provided by the Tucker

Act,” id. at 9a n.3 (quoting Preseault v. ICC, 494 US. 1,

11 (1990)). The court of appeals did not purport to

announce a categorical bar to equitable relief in takings

cases, but simply (and accurately) described the general

rule articulated in a number of this Court’s decisions.

Because the Just Compensation Clause does not “limit

the governmental interference with property rights per

se, but rather * * * secure[s] compensation in the

event of otherwise proper interference amounting to a

taking,” First English Evangelical Lutheran Church v.

17

County of Los Angeles, 482 U.S. 304, 315 (1987) (em-

phasis omitted), the Clause is not violated unless the

government, takes private property while refusing to

compensate the owner. For that reason, “([ejquitable

relief is not available to enjoin an alleged taking of

private property for a public use, duly authorized by

law, when a suit for compensation can be brought

against the sovereign subsequent to the taking.”

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

(footnote omitted); see United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121, 127-128 (1985). “If

the government has provided an adequate process for

obtaining compensation, and if resort to that process

yield[s] just compensation, then the property owner has

no claim against the Government for a taking.” Pre-

seault, 494 U.S. at 11 (quoting Williamson County

Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S.

172, 194-195 (1985)).

A plaintiff who alleges a taking of property by the

United States may generally seek just compensation

under the Tucker Act, which confers jurisdiction on the

Court of Federal Claims “to render judgment upon any

claim against the United States founded * * * upon

the Constitution.” 28 U.S.C. 1491(a)(1); see Monsanto,

467 U.S. at 1016 & n.20. Thus, even when federal

agency action effects a taking of property, that action

cannot be deemed unconstitutional, and equitable relief

is inappropriate, unless the plaintiff can demonstrate

that Congress has withdrawn the Tucker Act remedy.

See Preseault, 494 U.S. at 11-12. This Court has con-

sistently presumed, moreover, that the Tucker Act

remedy remains available in takings cases unless Con-

gress has clearly manifested its intent to withdraw that

remedy for a particular category of claims. See id. at

12. The court of appeals’ holding that petitioners had

18

failed to establish the inadequacy of their legal re-

medies is thus fully consistent with this Court’s pre-

cedents.’

c. Petitioners contend (Pet. 29) that injunctive relief

is appropriate because the “core” of their takings claim

“is that the taking is wnauthorized—and indeed

forbidden by—Congress.” Petitioners rely (Pet. 29) on

a provision of the Fire Island National Seashore Act, 16

U.S.C. 459e-1(e), which states that the Secretary of the

Interior “shall not acquire any privately owned

improved property or interests therein within the

boundaries of the seashore * * * without the consent

of the owners.” But while petitioners’ complaint

alleged that the federal respondents’ conduct has

caused damage to petitioners’ oceanfront tracts,

thereby effecting “de facto takings of [petitioners’]

properties” (C.A. App. A-64), proof of those allegations

* Petitioners’ reliance (Pet. 27-28) on the plurality opinion in

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), is misplaced.

The plurality in Eastern Enterprises acknowledged the general

rule that “the availability of a Tucker Act remedy renders pre-

mature any takings claim in federal district court.” Jd. at 521. The

Court concluded, however, that Congress could not have intended

the Tucker Act remedy to apply in the particular circumstances of

that case, where the alleged taking resulted from a statute re-

quiring the plaintiffs to make a stream of payments to another

party. Rather, the Court found that the “‘presumption of Tucker

Act availability must be reversed where the challenged statute,

rather than burdening real or physical property, requires a direct

transfer of funds’ mandated by the government.” /bid. (quoting Jn

re Chateaugay Corp., 53 F.3d 478, 493 (2d Cir.), cert. denied, 516

US. 913 (1995)). Because petitioners’ takings claim is based not on

a mandate to make a direct transfer of funds, but on the burden

that the federal respondents have allegedly imposed on their

“beachfront property” (Pet. 26), the reasoning of Eastern Enter-

prises does not apply here.

19

would not establish that the Secretary had “acquire[d]”

the relevant lands within the meaning of 16 U.S.C.

459e-l(e). Petitioners’ complaint did not allege a vio-

lation of Section 459e-1(e), and neither the district court

nor the court of appeals discussed that provision. Peti-

tioners’ statutory claim therefore does not warrant this

Court’s review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

KELLY A. JOHNSON

Acting Assistant Attorney

General

WILLIAM B, LAZARUS

KATHERINE J. BARTON

Attorneys

AUGUST 2005

Q — FI Le Bi vu.

| AUG 16

No. 04-1612 s 2005

IN THE ‘

Supreme Court of the United States

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., DAVIS PARK

FERRY Co., INC., ROBERT JOHNSON, DUNEWOOD PROPERTY

OWNERS’ ASSOCIATION, FAIR HARBOR FIRE DISTRICT,

and JAMES GROVER, JR.,

Petitioners,

Vs

UNITED STATES DEPARTMENT OF THE INTERIOR, GALE NORTON,

SECRETARY OF INTERIOR, MICHAEL T. REYNOLDS,

SUPERINTENDENT OF THE FIRE ISLAND NATIONAL SEASHORE,

@ UNITED STATES ARMY CORPS OF ENGINEERS, FRANCIS J. HARVEY,

SECRETARY OF THE ARMY, CARL A. STROCK, CHIEF OF

ENGINEERS, U.S. ARMY CORPS OF ENGINEERS, RANDY L.

DANIELS, SECRETARY, NEW YORK STATE DEPARTMENT OF STATE,

and DENISE M. SHEEHAN, ACTING COMMISSIONER, STATE OF NEW

YORK, DEPARTMENT OF ENVIRONMENTAL CONSERVATION,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals For the Second Circuit

os = wr,

REPLY BRIEF FOR PETITIONERS

IRVING LIKE DAVID T. GOLDBERG

REILLY, LIKE, & TENETY Counsel of Record

179 Little East Neck Road North 99 Hudson Street, 8th FI.

Babylon, N.Y. 11704 New York, N.Y. 10013

(631) 669-3000 (212) 334-8813

Additional counsel on inside cover

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

LAWRENCE R. LIEBESMAN

HOLLAND & KNIGHT LLP

2099 Pennsylvania Ave., NW

Washington, D.C. 20006

(202) 955-3000

TABLE OF CONTENTS

TABLE OF AUTHORITIES

CASES

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) .... 2

AFGE, Local 2119 v. Cohen, 171 F.3d 463

CFU Gs te ee ee 4

Applegate v. United States, 25 F.3d 1579

(OG Gat Pee ee ea 8

Babbitt v. Youpee, 519 U.S. 234 (1997) ..........0205. 9

Bowen v. Mich. Acad. of Family

Physicians, 476 U.S. 667 (1986) .............. 2

Committee to Save the Rio Hondo v.

Lucero, 102 F. 2d 445 (10th Cir. 1996) .......... 3

Devito v. U.S., 12 F. Supp. 2d 269 (E.D.N.Y. 1998) ...... 9

Dolan v. City of Tigard, 512 U.S. 374 (1994) .......... 8

Drakes Bay Land Co. v. United States,

ASO P20 FO CL PGT oa os a ee 10

Duke Power Co. v. Carolina Envt’l

Study Group, Inc., 438 U.S. 59 (1978) .......... 8

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) ..... 1,8

Electric Power Supply Ass'n v.

FERC, 391 F306 1255 (D.C. Cir. 2004) 2.22 oes, 4

FEC v. Akins, 525 U.S. 11 (1998)

Flast v. Cohen, 392 U.S. 83 (1968)

Fla. Audubon Soc’y v. Benson, 94 F.3d 658 (1996)

Hodel v. Irving, 481 U.S. 704 (1987)

Lingle v. Chevron USA Inc., 125 S. Ct. 2074 (2005)

Lujan v. Defenders of Wildlife, 504 U.S. 555

New York v. United States, 505 U.S. 144 (1992)

Norton v. Southern Utah Wilderness Alliance,

-124 S. Ct. 2373 (2004)

Pye v. United States, 269 F.3d 459 (4th Cir. 2001)

Robertson v. Methow Valley Citizen

Council, 490 U.S. 332 (1989)

Schlesinger v. Reservists Committee to

Stop the War, 418 U.S. 208 (1974)

Society Hill Towers Owners’ Ass'n v.

Rendell, 210 F.3d 168 (3d Cir. 2000)

United States v. Dickinson, 331 U.S. 745 (1947)

United States v. James, 478 U.S. 597 (1986) ........... .9

STATUTES AND LEGISLATIVE MATERIALS

Administrative Procedure Act,

5 U.S.C. 704

Fire Island National Seashore Act,

16 U.S.C. 459e-1(e)

Flood Control Act,

33 U.S.C. 702c

Pub. L. 106-53 (Water Resources

Development Act of 1999), Sec. 342

H.R. Rep. No. 1980, 79th Cong., 2d Sess. 41 (1946)

OTHER AUTHORITIES

Grant, A Revolutionary View of the Seventh

Amendment and the Just Compensation

Clause, 91 Nw. U. L. Rev. 144 (1996)

Lehner, Judicial Review of Administrative

Inaction, 83 COLUM. L. REV. 627 (1983)

Zaller, The Case for Strict Statutory Construction

of Mandatory Agency Deadlines under

Section 706(1), 42 WM. & MARY L. REV.

1545 (2001)

In the decision below, the Second Circuit held that the

federal courts are without power to entertain claims (1) to

compel agency compliance with specific statutory commands,

brought, under the Administrative Procedure Act, by the very

citizens the statute was intended to benefit; (2) for equitable

relief under the Takings Clause, in circumstances where the

remedy of monetary compensation after acquisition is not

adequate, congressionally intended, or constitutionally “just.”

As explained in the petition, these rulings reflect the

widespread uncertainty, confusion, and conflict in the lower

federal courts concerning (1) the nature of the modified Article

Hl standing test for “procedural rights” cases, Lujan v.

Defenders of Wildlife, 504 U.S. 555, 572-73 & nn. 7,8 (1992),

and (2) the circumstances under which the availability of a post-

deprivation monetary remedy should preclude district court

jurisdiction over Takings claims.

Respondents’ Brief in Opposition does not seriously dispute

that these questions have divided the lower courts (and this

Court, see Eastern Enterprises v. Apfel, 524 U.S. 498 (1998)),

nor does it deny that they are important questions of federal

law. Rather, Respondents largely argue that the questions were

resolved correctly below. That would not be a strong ground

for denying review in any event, and, as we show, the Second

Circuit’s decision was seriously wrong on its merits.

1. The Brief in Opposition is remarkably reticent about the

violation of the clear, specific, and mandatory congressional

command that is at the heart of this case. Section 342 of the

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

“direct[s]” the federal Respondents to “complete all procedures

and reviews expeditiously and to adopt and submit to Congress,

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

acceptable shore erosion plan” for Fire Island. Its enactment

was a direct response to a pattern of bureaucratic recalcitrance

(see Pet. 3-8), in the face of serious threats to those (including

Petitioners) who reside on and visit Fire Island and those on

2

Long Island’s South Shore who depend on it for protection

against coastal flooding.

Respondents do not (and could not) deny that the agencies

failed to adopt a shore erosion plan as required by Section 342,

but neither do they acknowledge or try to explain the agencies’

default. Rather, the brief makes a single, passing reference to

the agencies’ “deci[sion] not to proceed with the FIIP” (Opp. 5),

the oft-delayed erosion-control undertaking whose non-

completion had prompted Congress to command the agencies

to take action, once and for all, by a date certain.

a. As we demonstrated (Pet. 25-26), federal courts have

always been open to parties aggrieved by an agency’s failure to

perform actions “specifically and unequivocally commanded”

by Congress, Norton v. Southern Utah Wilderness Alliance, 124

S. Ct. 2373, 2379 (2004) (““SUWA”). Under our constitutional

system, agencies are not free to “decide,” like Bartleby the

Scrivener, not to comply with the law: “‘The statutes of

Congress are not merely advisory when they relate to

administrative agencies, any more than in other cases.’” Bowen

v. Mich. Acad. of Family Physicians, 476 U.S. 667, 671 (1986)

(quoting H.R. Rep. No. 1980, 79th Cong., 2d Sess. 41 (1946)).

Indeed, judicial review of agency action exists to address just

this kind of disregard for the duly enacted will of Congress.

The central purpose of the APA review provisions was “to give

the courts a tool with which they could force the agency to act

according to congressional will,” Zaller, The Case for Strict

Statutory Construction of Mandatory Agency Deadlines under

Section 706(1), 42 WM. & MARY L. REV. 1545, 1549 (2001);

Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967) (noting that

“basic presumption of judicial review” was “reinforced” by the

APA); Lehner, Judicial Review of Administrative Inaction, 83

COLUM. L. REV. 627, 689 (1983) (“Judicial review of agency

nonimplementation of a statute is both necessary and proper to

give effect to the congressional intent and to assure the

legitimacy of the administrative system”).

3

Indeed, even when the default is the relatively venial one of

a delay in meeting a statutory deadline, rather than, as here, an

outright refusal to execute a mandatory duty, courts have not

treated agency officials’ claims that a statute might prove

ineffective at achieving its ultimate policy goals as a reason to

deny aggrieved individuals standing to enforce it. Such an

argument, accepted below, creates an obvious moral hazard for

agencies facing inconvenient or unwelcome statutory mandates.

Defenders of Wildlife recognized that “redressability”

objections of this sort do not bar APA suits alleging

noncompliance with procedural mandates designed to protect

plaintiffs’ concrete interests, 504 U.S. at 572-73 & nn. 7,8 -

and that at the motion to dismiss stage, plaintiffs’ submissions

on standing ‘are entitled to the benefit of all reasonable

inferences and the assumption of specific support for general

allegations, id. at 561.

2. As our petition demonstrated, the Second Circuit’s

reasoning implicates a conflict among the courts of appeals as

to the nature of the Article II standing analysis under Defenders

of Wildlife footnotes. Respondents do not dispute this division

of authority, and for good reason. See, e.g., Committee to Save

the Rio Hondo v. Lucero, 102 F. 2d 445, 451 (10th Cir. 1996)

(expressly rejecting, as overly restrictive, the redressability

standard embraced by the D.C. Circuit in a sharply divided en

banc decision in Fla. Audubon Soc’y v. Benson, 94 F.3d 658,

667 (1996)); Pet. 20-24.

Rather, Respondents (Opp. 11-14) suggest that the rules

recognized in Defenders of Wildlife might apply only in

“environmental review” statutes, and that Petitioners’

likelihood of obtaining redress from a judicial ordering

compliance with Section 342 is somehow more “speculative”

than in the hypothetical NEPA case discussed in Defenders of

Wildlife.

a. There is nothing in this Court’s discussion in Defenders

of Wildlife that supports a subject-matter limitation to

4

procedurai standing, and the decisions of the courts of appeals

are to the contrary.’ As we showed (Pet. 14-24), the Second

Circuit’s decision implicates the same problem raised in those

cases, namely, whether the possibility that an agency, after

Carrying out procedures mandated by Congress to safeguard

interests that plaintiffs share, will reach a decision that does not

remedy a plaintiff s injury defeats jurisdiction over an APA suit

to compel performance of the legislated procedures. But to the

extent the discussion in Defenders of Wildlife has left

uncertainty as to when the less demanding standard should

govern, that would be reason for granting review here.

b. If Section 342 differs from the hypothetical “procedural

violation” standing addressed in Defenders, it differs only in

ways that make the case for standing stronger here.

i. First, this case arises on a motion to dismiss Petitioners’

complaint. Thus, even if it were true that the complaint merely

“alleged in general terms that the federal Respondents had

failed to take adequate steps to fulfill their statutory obligations

to protect the Fire Island coastline” (Opp. 13) — and it is not —

Petitioners would be entitled to the benefit of every reasonable

inference. See Defenders of Wildlife, 504 U.S. at 561.

ii. Second, and consistent with their general disregard for

the provision’s text and history as a response to specific

administrative failures, Respondents overlook the fact that

Section 342 itself required the agencies to finish “ail

procedures and reviews expeditiously” — a reference that, read

in the context of unfolding administrative proceedings

concerning Fire Island’s erosion problems, plainly included the

' See, e.g., Pye v. United States, 269 F.3d 459, 468 (4th Cir. 2001)

(National Historic Preservation Act); Society Hill Towers Owners’ Ass'n v.

Rendell, 210 F.3d 168, 176-77 (3d Cir. 2000) (same); AFGE, Local 2119

v. Cohen, 171 F.3d 463, 466-67 (7th Cir. 1999) (statutorily mandated cost

comparison for reduction in military force); Electric Power Supply Ass'n v.

FERC, 391 F.3d 1255, 1262 (D.C. Cir. 2004) (statutory prohibition on ex

parte communications).

5

then nearly complete NEPA review in connection with the FIP.

If, as Respondents appear to acknowledge, generic procedural

obligations like those imposed by NEPA are enforceable by

citizen plaintiffs with a concrete interest in the affected land (an

interest Respondents appear to concede to Petitioners here,

Opp. 9), then a statute mandating expeditious completion of

those reviews is a fortiori enforceable by those plaintiffs.

ii. Section 342 differs from NEPA and other generic

procedural statutes in another way that cuts strongly in

Petitioners’ favor. It is a narrowly targeted provision that was

intended to remedy a specific problem (“shore erosion”)

involving a particular geographic area (the stretch of seashore

“between Fire Island Inlet and Moriches Inlet”) and that

demands from the agencies a specific response (“a shore

erosion plan”). Section 342’s specificity readily differentiates

this suit from the “generalized challenges to overall agency

programs” that Respondents, surprisingly (Opp. 12), claim it to

resemble.” Doctrine aside, it strains common sense to deny a

person threatened with having his land washed away standing

to enforce a congressional “direction” to federal officials to

adopt a “shore erosion plan” targeting the threatened area.

Respondents do not dispute that Petitioners were the

proponents and intended beneficiaries of Section 342, nor that

Petitioners, of all people, have a concrete and particularized

interest in the agencies’ “deci{sion]” not to comply with the

provision. And they do not identify any other party who would

have standing to challenge the agency’s wholesale disregard for

—

2 See SUWA, 124 S. Ct. at 2380-81 (holding unreviewable plaintiffs’

claim that agencies had violated mandate to “‘manage [Wilderness Study

Areas} * * * so as not to impair thefir] suitability for preservation as

wilderness’” 43 U.S.C. 1782(c)). Notably, SUWA did not hold that plaintiffs

lacked standing.

Section 342.’

c. Section 342 itself should suffice to defeat the objection

that it remains “purely speculative” (Opp. 9) whether an order

requiring compliance by the agencies would address

Petitioners’ injury. The statute reflects a determination by

Congress that the “adoption” of a “shore erosion plan”

developed by the Corps of Engineers — one elaborate exemplar

of which was before Congress in August 1999 in the form of

the then nearly complete FIIP, see Pet. at 20 n.9 — would serve

as at least a partial remedy for the ongoing threat to Fire Island.

It is not “speculative” to conclude, following Congress, that a

“shore erosion plan” developed by the Nation’s foremost

engineering agency will benefit those threatened by shore

erosion in the very area covered by the plan.

Respondents do not cite any authority for the proposition

that Defenders of Wildlife imposed a “reasonable prospect” of

ultimate redress requirement (p.13) in procedural rights cases;

as the petition explains (pp. 21-22), several courts of appeals

have held that the probability that injury will or will not

ultimately be averted has no place in the analysis. And even

_ without benefit of the indulgent standards for Rule 12(b)(6)

motions, the likelihood of concrete relief for Petitioners is at

least as great as in the typical NEPA case, where there is always

the possibility that the agency will decide to proceed with the

project after environmental review is complete, without

adopting any of the mitigation measures sought by the project

opponents, see Robertson v. Methow Valley Citizen Council,

3 There are, to be sure, legal obligations that no party has standing to

enforce, see Schlesinger v. Reservists Committee to Stop the War, 418 U.S.

208, 227 (1974), but this case does not involve a “generalized grievance”

common to all or many citizens, Flast v. Cohen, 392 U.S. 83, 106 (1968),

and it is unrealistic to expect the “political processes,” Reservists Committee,

418 U.S. at 227, to stand as the exclusive check on administrative

intransigence of this kind. On the contrary, Congress expressly authorized

federal courts to compel agencies to take action, at the behest of aggrieved

parties like Petitioners. See 5 U.S.C. 702, 706(1).