-
New Superintendent Named
David W. Spirtes is the new Superintendent. He will be on the scene in early May. (read article) -
NYCP Case Argued
A summary of the arguments made at the US Court of Appeals on April 2. (read article) -
Beach Fill Projects Deferred to September
Meetings have been held at FINS on the necessary permits. (read article) -
Driving Regulations Continue Under Study
The special commission of Fire Islanders set up to revise off-road driving regulations for Fire Island has had its life extended. A final meeting will be held in May. (read article) -
Vote on School Budget May 20th
1476 registered voters to vote on matters before the Fire Island school district, including the annual budget approval. (read article) -
Brookhaven Studies Zoning, Flood Plain Management
Commercial zoning under review; FIA President one of seven appointed by Town Board to assist in preparation of a plan that will help the Town qualify for special funding. (read article)
David W. Spirtes Named Superintendent of Fire Island National Seashore
The National Park Service has named David W. Spirtes, who had been Superintendent of Western Arctic National Parklands in Kotzebue, Alaska, to be Superintendent at FINS. The announcement was made in late February by Marie Rust, Director of NPS’ northeast region. Mr. Spirtes succeeds Constantine Dillon who became Superintendent of NPS’ Albright Training Center in Arizona last August. Barry Sullivan, now Acting Superintendent, is expected to stay on as Deputy.
“Dave Spirtes is just the perfect mix of seasoned professional and sophisticated park manager,” Ms. Rust said in a press release. “The record shows that he believes in partnership and community involvement,” she added.
Mr. Spirtes, who was born in the Bronx, earned a degree in history from University of Pittsburgh in 1970. He served in Vietnam and won a Combat Infantryman’s Badge as a member of the Path-finders unit of the 101st Airborne Division.
Superintendent Spirtes brings broad experience as a park manager to Fire Island. Since his first Park Service Assignment as a seasonal park ranger at White Sands National Monument in New Mexico, he has directed science/research operations, law enforcement, museum/cultural preservation activities, maintenance and engineering operations, and mining and materials oversight. He served as a seasonal ranger in National Parks at Grand Can-yon, the Everglades and Glacier (Montana), before his first career assignment at Gulf Islands National Seashore in 1977. He was Chief Ranger in Glacier Bay and North Cascades National Parks
Mr. Spirtes’ most recent assignment, Western Arc-tic National Parklands, put him charge of one of America’s largest parks, 11.7 million acres (com-pared to Fire Island’s fewer than 20,000). In his time there, the park established the Arctic Inventory and Monitoring Network. (A similar opportunity may arise in connection with the Atlantic Coast Monitoring effort being developed by the Army Engineers and New York State.) According to the NPS release, science-based decision-making was enhanced during his tenure, he developed agreements for management of several wildlife species, and created cooperative relationships with local interests on a variety of matters.
Mr. Spirtes says he is “grateful for the opportunity to serve as Superintendent of Fire Island National Seashore,” and looks forward to “working with the park staff, community partners, organizations, lo-cal residents, and all stakeholders on the challenging issues facing Fire Island today and building consensus regarding its future.” He said he, his wife, Kathy, and their eight-year-old daughter “are excited about moving from the remote Arctic Ocean back to my home state of New York.”
Mr. Spirtes, who spoke to FIA by satellite phone from Kotzebue, has been in Alaska with his family since 1994, serving as Superintendent of the Bering Land Bridge National Preserve before assuming his most recent position. He has received awards for wilderness management, assisting with the Exxon Valdez oil spill response, managing search and rescue operations and safety. He received the Secretary of the Interior’s Meritorious Service Award in 2000.
We look forward to working with him.
Back to Top
NYCP Case Argued Before the 2nd Circuit
A year ago Federal District Judge Jacob Mishler granted a government motion to dismiss the law-suit filed by the New York Coastal Partnership (NYCP). (The following day Judge Mishler resigned from the bench.) On April 2 this year the Court of Appeals heard arguments on whether his decision was correct.
The NYCP suit was brought by a diverse group of plaintiffs, ranging from a former Congressman to businessmen, to the Piping Plover. The latter is a federally-protected shorebird whose habitat was destroyed by failure of government to foster the westward drift of sand that builds the beaches they use as nesting areas. In addition to arguing that the permitted blockage of sand by government gave rise to erosion, causing a taking of real property under state and federal law, the appeal also claimed that the responsible federal agencies had ignored a directive of Congress to solve the problem. The cost of the initial suit, as well as the appeal of the adverse lower court ruling, was sup-ported by contributions from Fire Islanders and others interested in protecting Fire Island from erosion.
The NYCP argument was presented by Leon Friedman, a professor at Hofstra Law School. Judge Rosemary S. Pooler presided, with Judges Jon O. Newman and Robert A. Katzmann also sit-ting. The case had been slotted last on the docket, itself an indication that the Judges thought it might be interesting enough to allow it to run over the allotted time, which it did. Larry Liebesman, Irving Like and David Goldberg (all listed on the NYCP brief) were at the counsel table. The state and the US Attorney had five at the counsel table, including an attorney for New York State.
Professor Friedman began by enumerating the three counts of the appeal: government failure to comply with Section 342 of the 1999 Water Re-sources Development Act (WRDA). He thinks
the lower court decision should be reversed and sent back to the District Court for a new trial. He dealt with the taking of property claims and the Endangered Species Act (Piping Plover) claims separately, arguing that each ought at least to be reviewed, not thrown out without a hearing.
He addressed the WRDA claim first by giving background on Fire Island: erosion is serious and has been aggravated by failure of federal government agencies responsible to agree on a plan to cope with it. He said the state and federal governments for many years had tried to address the problem of erosion on the south shore; “they wanted to do something; finally, Congress lost patience.” Professor Friedman said, in WRDA 342, Congress had told the agencies (the Army Engineers and the Department of the Interior) to: “Go into a room and don’t come out until you’ve agreed on a plan to stop erosion. They came out, but without a plan. They were not asked to suggest further procedural steps; they were asked for a plan and they did not produce it.”
Judge Katzmann seemed to feel that it was Congress (not the plaintiffs) that had been disobeyed and wondered what recourse Congress had. Prof. Friedman responded that citizens, affected by failure of an agency to do something Congress had ordered done, have a right to petition a court to force the agency to do what Congress directed. There was discussion of whether this was not a private cause of action and Prof. Friedman said that, under the Administrative Procedures Act (APA), an agency can be compelled to act when a mandated act is not performed.
Judge Newman asked if the agency responses did not satisfy WRDA’s demand for a report. Prof Friedman said, “This was not a case of ‘tell us what you’re doing – give us a plan’.” In discussion he added that “this court should tell the defendants to come up with a plan.”
Judge Newman asked, “If the problem is erosion, why would a plan help?” Professor Friedman answered by saying that the appellants were not trying to dictate a solution but simply trying to get the agencies to “take the first step, even if that step is only a planning step.”
The Assistant US Attorney began by arguing that plaintiffs cannot proceed directly under WRDA 99 because no loss can be demonstrated from a failure to come up with an erosion plan. That’s be-cause state participation would also be needed and both governments would have to agree to make the payments requested. He was asked if Congress didn’t know that the state had also to approve an erosion project that would be mutually acceptable to the Corps and DOI? If so, was WRDA enforce-able by anyone? He answered that it was clear that WRDA 99 only affected the federal agencies. Judge Pooler agreed that “once a plan was in existence, the state would have to agree to participate.”
There was discussion of the standing issue. The AUSA stated that “inaction [by a government agency] is not reviewable.” Judge Katzmann asked about the “finality” of an agency decision: “How do you know when you’re through?” He added that it was clear to him there was no “final action.”
Judge Newman asked, “If there is a claim, what’s the remedy?” The AUSA said if the damage was due to the groinfield, you sue for damages. Judge Newman responded, “Why isn’t the remedy: We want a plan and we want it promptly?” He added, “How can you say there is no injury if a plan would be a step in a process that would alleviate the injury?” The government replied there is no requirement as to what a mutually acceptable plan would consist of or how and by whom it would be funded. It is too speculative.
Judge Pooler noted that the District Court opinion, while generally competent, did not address
WRDA. “Why should we not remand to see what they say? A remand is the appropriate remedy when a key issue is not addressed below, isn’t it?” The government attorney asked if that would be a de novo decision, but seemed resigned to the idea.
The state attorney declared that the plaintiff’s constitutional argument under Sec. 1983 is for compensation by $78 million worth of sand. “No law provides for this. It would be an extraordinary and purely discretionary act by the state.” She said there are many hurdles to the “mutually acceptable plan” that have not been overcome (including approval of the plan by the state). Compelling the state to act would be to usurp state functions and violate the 10th Amendment [powers not reserved by the federal government revert to the states]. Participation in shore protection is purely discretionary so far as the state is concerned.
As for takings, plaintiffs have to show they sought and were denied compensation to avoid the Constitutional issue. Appellants try to explain away Sec. 1983 by using negligence claims. It is not a violation of due process that rises to the level of negligence.
Prof Friedman had reserved two minutes for rebuttal. He began by noting “an air of unreality” in which people were said to be claiming compensation in the form of millions of dollars for beach projects. He said that was not the case. All people are asking for here is for “government to take the first step in the process; get a plan and get going.” He cited last summer’s letter from Congressmen Israel and Grucci which stated that “the demand of Congress was unequivocal, yet the erosion has continued unabated.” He repeated that “We want a first step to be taken.”
Lawyers present noted that Professor Friedman had delivered a commonsense argument with passion and occasional humor, while the government lawyers seemed insensitive to the critical erosion dangers facing Fire Island and its communities.
Judge Pooler said the court would reserve its decision. It is unlikely that a ruling will issue in less than sixty days. A favorable decision for Fire Is-land would send the case back to the trial court for a rehearing.
The new target date for issuance of permits that would allow communities to take action to protect adjacent public beaches is August 1. Those communities meeting the permit conditions (beach height and width) would be able to augment their dune system by scraping, if they could complete the project within the permit window. Current permits call for scraping to be completed by August 15 to allow for maximum summer build-up before fall storms begin. New permits may allow for project completion at a later date, if necessary.
The beach fill projects slated for Fire Island Pines and several
westerly communities will not be done until after Labor Day. Agencies
were unable to get all of the preliminary permit work accomplished soon
enough to allow the project to be built before the onset of the Piping
Plover courtship/nesting seasons, which begins in mid-March and ends in
July. Beach fill projects are not constructed during peak beach usage
months for obvious reasons; hence, the Labor Day start date.
An unrelated bayside project calling for dredging of the entrance to the Fire Island Pines boat basin is expected to be completed before the Memorial Day weekend.
Driving Reg Meetings Extended to May
A two-day meeting of the Fire Island Negotiated Rulemaking Committee has been scheduled for May 9-10. With any luck the committee will reach a final “consensus” on how off-road driving on Fire Island will be regulated.
Because the nature of negotiated rulemaking precludes public discussion while it is underway, participants are urged to counsel with constituents but not to discuss progress in public. The Newsletter will carry a full report once a conclusion is reached.
According to the Suffolk County Board of Elections, 1,476 persons are registered to vote on Fire Island. These voters are eligible to vote on matters before the Fire Island school district, including the annual budget approval. This year the budget vote will be held on May 20.
The rules allow voting by absentee ballot if the voter is absent from the County for reasons of business or other travel. Requests for absentee bal-lot applications must be made to:
Attn: Julia J. Espinosa, District Clerk
Fire Island School District
Woodhull School
PO Box 428
Ocean Beach NY 11770-0428
Applications must be received by the District Clerk between April 21 and May 13. When the application is received a ballot is mailed to the registered voter. The ballot must be mailed back to and received by the District Clerk by May 19.
This is an opportunity to participate in school district affairs.
Brookhaven Begins Zoning Review
The Town of Brookhaven held a long and contentious zoning hearing on April 9. The Town was seeking public comments on proposed revisions of the land use code. The hearing notice attached a nine-point summary of the kinds of changes in the code they expect to be looking at. Six of these relate to commercial and industrial uses and the Town let it be known that such uses were their primary concern at the hearing. Developers of commercial property were expected to have the most to say at the initial hearing.
The other three proposed changes could eventually be problematic for residential areas. A new wetlands overlay district might have application in presently undeveloped sections of some Fire Island communities, for example, though details are not yet available. Other provisions pertaining to variances and non-conforming uses could affect some Fire Island properties. The proposal to eliminate current code provisions that allow for unexpired variances to be deemed permanent and providing for an expiration period for all variances also needs to be explained more fully by the Town.
A Newsday editorial (April 11) applauds revision of what it calls “Brookhaven’s archaic zoning codes.” But it notes that while Supervisor LaValle’s “first proposals affect commercial zoning, those on residential properties will follow later.” FIA has been led to believe that it will be some time before the residential code provisions are looked at town-wide, but it seems clear that the environment community will try to speed a review of land use and zoning on Fire Island. FIA, of course, will be alert to proposed changes that are inimical to island property owners, whenever they arise.
Busy, Busy
Brookhaven is also engaged in the preparation of "Floodplain Management and Hazard Mitigation Mitigation Plan." Along with representatives of the town's mainland south and north shore communities, FIA has been asked to provide information on actions barrier island communities have already taken that might provide protection from storms or otherwise reduce the amount of damage that would result from flooding.
Most of Brookhaven’s Fire Island communities have erosion control taxing districts or dune and beach protection committees that raise and spend community funds for this purpose. If the Town can present information on past expenditures by communities that will tend to reduce potential disaster recovery costs in the future, it could qualify for grants that will allow it to take protective steps in advance of a flood or other disaster.
If communities advise FIA of past expenditures that have been made along these lines, we can pass the information to the Town. This would include expenditures for fill projects, beach scraping, dune planting or protection programs and snow fencing, as well as money spent on educating members and the public of the need to preserve protective dunes. Data going back 20 years, or as far as community records allow, is requested.
An account of money spent on elevating individual homes would also be useful. Many Fire Island homes have been renovated in the past twenty years and some have been elevated to FEMA standard in the process. Reposting a house to FEMA standard runs to about $40,000. If the number of houses where this improvement has been made in the past 20 years or so can be estimated, the amount can also be included in the Town's statistics.