DOCKET NO.

Plaintiffs, CV 01 2777

VS. FIRST AMENDED

UNITED STATES DEPARTMENT OF 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; LT.GEN ROBERT B. FLOWERS,
CHIEF OF ENGINEERS, U.S. ARMY CORPS
OF ENGINEERS; ERIN M. CROTTY, COMMISSIONER,
STATE OF NEW YORK, DEPARTMENT OF
ENVIRONMENTAL CONSERVATION; RANDY L.
DANIELS, SECRETARY, NEW YORK STATE
DEPARTMENT OF STATE

Defendants.
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Plaintiffs, by their undersigned attorneys for their First Amended Complaint hereby allege as follows:

1. The essence of this suit is the Plaintiffs' effort to remedy the failure of the Defendant federal and state agencies to protect the lives, property and resources of Fire Island and the Long Island South Shore from unnecessary damage from Atlantic storms.

2. Plaintiffs seek declaratory and injunctive relief from the Defendants’ breach of their statutory and fiduciary duties in that the Defendants have failed by failing to take action on the permits and authorizations necessary to implement a certain minimal project known as "Fire Island Inlet to Montauk Point, Long Island, New York, hurricane protection and storm damage reduction project Reach 1, Fire Island Inlet to Moriches Inlet" (FIMP) that was approved by Congress in 1960, House Doc. 425, 1960 designed by the Corps to deal with an imminently emergent erosion condition. The suit claims that:

A. The Defendants have acted individually and in partnership with regard to the prior construction and lack of maintenance of certain erosion and navigation projects in the Shinnecock Inlet, Westhampton Beach, and Moriches Inlet areas, in such manner as to cause continuing injuries to Plaintiffs’ properties by causing acceleration of the rate of erosion on Fire Island and flooding and overwashes, which constitute de facto takings and deprivations of Plaintiffs’ property rights (hereinafter "Physical Invasions");

B. The Defendants violated, and continue to violate Federal and State laws, the Public Trust Doctrine, and the takings and due process clauses of the United States and New York State Constitutions;

C. The State Defendants are liable for negligence, trespass and nuisance; and

D. The Defendants breached their duty to timely complete the permit request and approval process required to implement the Fire Island Interim Project ("FIIP"), an emergency preliminary project to the FIMP and to mitigate the continuing erosion damage.

3. The FIIP was designed by the United States Army Corps of Engineers ("Corps") to provide interim storm damage protection to Fire Island until the more comprehensive solution, i.e., the FIMP could be implemented. It provides for the renourishment of the beaches and dunes of Fire Island with sand dredged from selected off-shore borrow areas and the placement of such sand so as to create a protective beach berm and dune. According to the Corps, the FIIP is urgently needed to protect Fire Island and the south shore of the Long Island mainland from accelerated erosion and Physical Invasions.

4. Defendants’ acts and breach of their constitutional, statutory and fiduciary duties to the plaintiffs have also injured the Fire Island communities and the State, Suffolk County and municipal properties located therein, have placed at risk the properties and safety of south shore mainland residents and businesses, and the mainland properties of municipalities, Suffolk County, and the State of New York, and have deprived the taxpayers within the Villages, Towns, County, State and Federal properties on Fire Island of the use thereof.

5. The various Federal laws that Defendants are in violation of include the Fire Island National Seashore Act, the Fire Island Wilderness Act, the National Park Service Organic Act, the National Environmental Policy Act, the Environmental Quality Improvement Act, the Water Resources Development Act, and 42 U.S.C. section 1983.

6. Plaintiffs seek judicial review, pursuant to the Federal Administrative Procedure Act, of the failure of the United States Department of Interior and of the Corps to timely and in good faith complete the review process required by the National Environmental Policy Act and other federal laws, and to act on the request for a special use permit required to proceed with the FIIP, which is minimally essential to prevent and mitigate the physical invasions, de facto takings, and deprivations of Plaintiffs’ property rights.

7. This Court has jurisdiction over this action pursuant to 28 U.S.C. section 1331 because this action arises under Federal statutes. Judicial review of a final agency action is authorized pursuant to the APA, 5 U.S.C. sections 701-706. Pursuant to 28 U.S.C. section 1367(a), this Court maintains jurisdiction over Plaintiffs’ First, Second and Third Claims insofar as they seek relief against the State Defendants.

8. Venue in this Court is proper pursuant to 28 U.S.C. section 1391(e) and 16 U.S.C. section 1540(g)(3)(A). Declaratory relief is authorized by 28 U.S.C. sections 2201 - 2202 and the Federal Rules of Civil Procedure, see Fed. R. Civ. Rule 57. Injunctive relief is authorized by Federal Rule of Civil Procedure Rule 65.

9. The Plaintiffs in this action are:

A. THE NEW YORK COASTAL PARTNERSHIP, INC. (NYCP)

(1) NYCP is a not-for-profit corporation, organized under the laws of the State of New York, having its principal office at Babylon, County of Suffolk, State of New York, dedicated to protecting the coastal areas of Long Island, including the Fire Island Barrier Island and the South Shore mainland flood prone areas, from erosion and flooding.

(2) NYCP, in 1995, published a report prepared by a prominent coastal engineer, and Dr. Lee Koppelman, Director of the Long Island Regional Planning Board, which assessed the vulnerability of Long Island's shore to Atlantic Ocean tidal Erosion and flooding. It reached two conclusions: First that future severe storms and erosion threatened a breach of the Fire Island Barrier Island, with consequent flooding of the South Shore mainland communities; and Second, that the benefits of a Fire Island erosion project significantly outweighed its costs.

FIRE ISLAND PLAINTIFFS

B. MAURICE BARBASH

(1) Maurice Barbash, residing at Brightwaters, County of Suffolk, State of New York, one of the founders and the current President of NYCP, is the owner of improved ocean front property, since 1959, in the community known as Dunewood, Fire Island, Town of Islip, consisting of about 100 houses which he developed over a period of years, beginning in the late 1950s;

(2) He was Chairman of the Citizens Committee for a Fire Island National Seashore, which played a leading role in the grass roots mainland effort, which led in 1964 to the enactment of the Fire Island National Seashore legislation, and he was honored by the National Audubon Society for his efforts;

(3) Since creation of the Seashore, he has advocated increased public access to its natural resources, and voluntarily gave up the right to develop Dunewood with commercial facilities in order to retain its residential character in keeping with the goals of the Seashore;

(4) He has sustained major damage to his ocean front house as the result of storm driven erosion in 1962 and in 1992 and 1993;

(5) The Dunewood community incurred a cost of about $350,000 to pay for a dredging project necessary to repair its dunes which were severely eroded as the result of the 1992/1993 storms;

(6) The beach and dunes at Dunewood, are currently so severely eroded that the Dunewood Property Owners Association plans to apply to the cognizant defendants for emergency permits to replenish its beach and dunes through beach scraping or, if necessary, from a dredging project;

(7) Maurice Barbash will bear part of the cost of such project.

C. DAVID A. SLOANE

(1) David A. Sloane, residing at Patchogue, County of Suffolk, State of New York is the owner of ocean front improved property on Dune Walk in the Community of Davis Park, Town of Brookhaven, the eastern most community of Fire Island.

(2) He lost his house as a result of prior storms and has to date been unable to reconstruct and occupy it.

D. JOHN W. LUND

(1) John W. Lund, residing at Sayville, County of Suffolk, State of New York is the owner of improved property in close proximity to the Atlantic Ocean, in the community known as Davis Park, Town of Brookhaven, in eastern Fire Island;

(2) He is the President of the Davis Park Association, a property owners association, with over 200 members;

(3) Davis Park a community of 282 homes had severe damage in 1978, 1989, 1991 (the Halloween storm), 1995-96.

(4) Davis Park residents have spent more than $250,000 over the past eight years ($55,000 per year for the last three years from erosion control taxing district funds) to repair erosion damage, but, despite these expenditures, Davis Park remains a sand starved area because the proprietors of the beach to the east, the National Park Service, has failed to maintain a normal beach and dune system that would naturally feed sand to Davis Park, which remains vulnerable to a breach.

(5) Old Inlet, approximately six miles east of the Watch Hill Visitor Center, is so named because the inlet once there was closed in the 19th Century, as a result of a vessel grounding in the channel. Stabilization, since 1955, of Moriches Inlet, approximately ten miles east, reduced the hydrological forces that might have caused Old Inlet to reopen. There are no dunes between ocean and bay in the Old Inlet area, and ocean to bay overwash is common, making it apparent that a severe storm of a few days duration could cause a breach in this part of Fire Island, severing the Otis G. Pike High Dunes Wilderness Area and causing severe, if unknown, damage to Great South Bay. Such a breach could be permanent if Moriches Inlet closed as a result of reduced hydrological forces in that area, and would destroy existing habitats used by various species of plants and animals. Any breach east of Davis Park would cause significant hardship to that community by forcing winter beach vehicle traffic to service the community from the western end of Fire Island, rather than the eastern end, a detour of up to fifty (50) miles.

E. SANDY ASSOCIATES, having its principal office in Patchogue, County of Suffolk, State of New York is the owner of business property, a bar and grill, known as the Davis Park Casino, in Davis Park, in close proximity to the Atlantic Ocean , which suffered serious erosion damage in 1995 and was destroyed in early January 1996.

F. EUGENE D. FALK

(1) Eugene D. Falk residing at New York City, State of New York, is the owner of improved ocean front property in Fire Island Pines, (The "Pines") Town of Brookhaven;

(2) He is one of 732 members of the Fire Island Pines Property Owners Association;

(3) FIPPOA applied for, and received in May 1997, the defendants’ approvals for a dredging project designed to replenish its severely eroded beach and dunes, and to create a new dune;

(4) FIPPOA completed that project in November 1997 at a cost to its members of $2.3 million dollars;

(5) Five (5) of the owners of the eight (8) properties abandoned their properties, and title was transferred to the County of Suffolk for non- payment of taxes;

(6) In July 1998, the defendant DEC pursuant to its authority under the Coastal Erosion Hazard Area Act ("CEHA"), (ECL Article 34), mapped the ocean front properties of the Pines community so as to subject them to the DEC's expanded regulatory jurisdiction under the CEHA and its implementing regulations (6 NYCRR 505 et seq);

(7) The effect of the DEC CEHA mapping is to prohibit or restrict certain uses and activities on those properties, including barring their reconstruction, depending on the extent of damage they incur due to erosion;

(8) If the FIIP is not implemented, Plaintiff Eugene Falk and others similarly situated in the CEHA of the Pines and other Fire Island communities, may lose their right to reconstruct their homes if severely damaged by erosion or flooding events, which might otherwise have been prevented by the beach replenishment called for by the FIIP.

G. DAVID ASH

(1) David Ash, residing at Pleasantville, State of New York is the owner of improved ocean front property in the community known as Ocean Bay Park in the Town of Brookhaven;

(2) He was formerly the president of the Ocean Bay Park Association, which has 175 members;

(3) He has suffered major damage to his property as the result of prior erosion events;

(4) The community of Ocean Bay Park which lost eight (8) houses in the 1992/93 storms, incurred a cost over $175,000. to pay for a dredging project to rebuild its beach and dune system;

H. JEROME LEVY, M.D.

(1) Dr. Levy residing at New York City, State of New York , is the owner of improved ocean front property in the community of Seaview, which is located partly in the Town Brookhaven and partly in the Town of Islip, has also suffered significant erosion damage in prior storms, and has incurred substantial repair costs;

(2) Dr. Levy holds a certificate of suspension of condemnation authority, issued to him by the Secretary of Interior, in accordance with the statutory exemption provided pursuant to the FINSA for improved properties located within the Seashore dune district in towns whose zoning ordinances have been approved by the Secretary of Interior. The defendant Dillon, Superintendent of the FINS now objects to, and has threatened, without legal justification, to withdraw the prior approval given to the Islip zoning ordinance, which if carried out, may lead to the loss of exempt status now held by Dr. Levy, and others similarly situated.

I. WELLS NEWELL

(1) Wells Newell, residing at New York City, State of New York is the owner of improved ocean front property in the community of Fair Harbor, Town of Islip;

(2) Fair Harbor lost 21 houses due to the erosion and flooding caused by the 1992/93 storms, and incurred a cost of well over $1,000,000 to replenish its beach and dunes;

(3) Wells Newell lost his house as the result of those storms;

(4) He has since reconstructed his house;

(5) The beach and dunes at Fair Harbor are currently so severely eroded, and ocean front houses in such precarious position, that the Fair Harbor Community Association is planning to apply for an emergency permit to replenish its dunes with sand by beach scraping or. if necessary. from a dredging project.

J. JOYCE SEGAL

(1) Joyce Segal, residing at Fort Lee, State of New Jersey is the owner of improved ocean front property in the Village of Saltaire;

(2) The Village of Saltaire suffered significant erosion and flooding damage due to the 1992-1993 storms, and paid over $1,500,000 for a dredging project to renourish its beach and dunes;

(3) The Saltaire ocean front is in such severely eroded condition that it plans, along with the Fair Harbor and Dunewood communities, for emergency beach scraping or dredging permits, part of the cost of which will be borne by Joyce Segal;

(4) Within the Village of Saltaire are situated DEC mapped freshwater wetlands which, as well as its associated eco-system, may be destroyed or degraded by salt water overwash, if the FIIP is not implemented.

(5) The Village’s incinerator, is at risk of being damaged and/or disabled if the FIIP is not implemented.

K. HARRY PARITSKY

(1) Harry Paritsky, residing at Bay Shore, County of Suffolk, State of New York is the owner of improved ocean front property at Oak Street in the Community of Kismet, Town of Islip.

(2) Kismet lost four houses in the storms of 1992/93 and two additional houses had to be moved landward as a result of erosion.

(3) The Community spent $70,000 ($45,000 of it from the Federal Emergency Management Agency) for emergency sand replenishment following the storms and has since spent $35,000 per year in erosion control taxing district funds.

L. DUNEWOOD PROPERTY OWNERS’ ASSOCIATION

(1) Plaintiff, Dunewood Property Owners’ Association, ("DPOA") is a membership corporation, organized under the laws of the State of New York, representing and governing the affairs, pursuant to its By-Laws, of one hundred (100) families who own residential improved properties in the community of Dunewood, Fire Island, Town of Islip, New York.

(2) DPOA owns tax assessable properties, including two (2) tennis courts, a beach, bulk heading, docks and a marina on Great South Bay, storage shed and walks, used in common by its members, ("Common Properties"), and operates a water supply system for that community’s benefit.

(3) DPOA is responsible for the repair, maintenance, and management of the Common Properties, the cost of which is financed by the dues and special assessments of its members.

(4) DPOA was instrumental in creating a Dunewood Beach Erosion Control District, pursuant to the Town Law, which undertook an offshore dredging and beach and dune restoration project, to repair the damage caused during the severe flooding and erosion of the 1992/1993 winter season, at a cost of approximately $350,000 which was assessed by the Town of Islip to, and paid by the DPOA members.

(5) The area encompassed by the Dunewood community is the narrowest strip of barrier island among the developed communities on Fire Island; its beach and dunes are seriously eroded. If the F.I.I.P. is not expeditiously completed, it is particularly vulnerable to a breach by the Atlantic Ocean, which could destroy the Dunewood community including the DPOA’s Common Properties.

(6) That risk is so severe that DPOA has obtained a beach scraping permit and plans to apply to the defendants, whose approvals are necessary, for an emergency permit to perform dredging, if necessary to place fill on its beach and dunes to protect against erosion and flooding.

(7) DPOA is similarly situated with all property owners’ associations in the developed communities of Fire Island, insofar as they too own Common Properties, have created beach erosion districts, have expended many hundreds of thousands of dollars in erosion protection projects to repair damaged beaches and dunes, and who are at risk of breach of the barrier island and destruction of their communities and common properties and water supply.

M. FAIR HARBOR FIRE DISTRICT

(1) The Fair Harbor Fire District was formed in 1931. Its duty through the Fair Harbor Fire Department is to protect the 390 homes of its community and the 175 neighboring homes in Dunewood and Lonelyville. (2) In addition, the district has mutual aid agreements with all other Fire Island communities. To respond to these agreements, in many instances, requires that the equipment and firefighters use the beach to reach these communities. For the fire department volunteers to effectively perform responsibilities, they must have access to a beach wide enough for the firefighting equipment to perform its safety function, which is now not the case. Unless the FIIP is completed to provide a wide enough beach, those communities are in grave danger.

L. THE HARBOUR CLUB:

(1) The Harbour Club, having its principal place of business in Babylon, County of Suffolk, State of New York operates a multi-family apartment house community on 22 acres, in the Town of Babylon, at the mouth of the Santapogue Creek, that connects directly to the Great South Bay;

(2) It has approximately 1500 linear feet of bulkheaded water front;

(3) The bulkhead wall height is approximately 36" above the high water mark;

(4) The ground water table in this area is about 16 to 24 inches below grade;

(5) Any change in the water tide level would directly affect this property, its drainage, all apartment units, storage areas, and parking areas;

(6) A breach of the Fire Island barrier island would cause economic damage to the Harbour Club apartments, by increasing tide levels in Great South Bay.

M. MODICA ASSOCIATES OF NEW YORK 122, LLC ("MODICA")

(1) Modica, having its principal place of business at Bay Shore, County of Suffolk, State of New York owns improved premises located on the southerly end of Ocean Avenue in Bay Shore, Town of Islip, which front on Great South Bay, a tidal navigable body of water;

(2) Modica also owns a marina located on Great South Bay in the immediate vicinity;

(3) A restaurant and catering hall are located on the premises known as Captain Bill's, operated by Modica's lessee;

(4) Customers of Captain Bill's park on the Ocean Avenue Dock Extension, or arrive by boat and berth their boats in boat slips owned by Modica;

(5) A breach of the Fire Island Barrier Island would cause severe flooding and economic damage to Modica.

N. FIRE ISLAND FERRIES, INC.:

(1) Fire Island Ferries, Inc., having its principal place of business at Bay Shore, County of Suffolk, State of New York owns two (2) ferry terminals and parking lots on Maple Avenue, Bay Shore, Town of Islip;

(2) It employs a number of ferry boat operators, captains, crews, mechanics, ticket sellers, freight handlers, parking attendants, etc., and owns and operates a fleet of passenger and freight ferry vessels from its terminals which service the communities on the west end of Fire Island, (Kismet, Saltaire, Fair Harbor, Dunewood, Atlantique, Ocean Beach, Seaview, and Ocean Bay Park);

(3) Its ferries transport hundreds of thousands of persons to and from Fire Island, and significant volumes of freight to accommodate the needs of residents and businesses on Fire Island;

(4) During past storms, its ferries were used to evacuate Fire Island;

(5) A breach of the Fire Island barrier island would cause severe flooding and detriment to public safety, disrupt its business and result in substantial economic damage to the Fire Island Ferries, Inc.

O. JMA INDUSTRIES, INC. ("JMA"):

(1) JMA having its principal place of business at Melville, County of Suffolk, State of New York is a private carting company that services approximately 375 homes, several commercial accounts, and multiple unit dwellings;

(2) It operates on the west end of Fire Island from Kismet to Ocean Beach;

(3) A breach of the Fire Island Barrier Island would cause severe flooding and detriment to public health, disrupt its business, and result in economic damage to JMA.

P. WHITE CAP FISH COMPANY, INC.

(1) White Capt Fish Company, Inc., having its principal place of business at Islip, County of Suffolk, State of New York is the owner of property fronting on Great South Bay on Montauk Highway in the Town of Islip, and is engaged in the sale of fish and other seafood products.

(2) It sustained severe damage due to flooding caused by prior storms including the 1992/93 storms which rendered its premises inaccessible. A breach of the Fire Island barrier island would cause severe flooding and economic damage to White Cap Fish Company, Inc.

Q. LEONARD WEINSTEIN

(1) Leonard Weinstein, residing at West Islip, County of Suffolk, State of New York is the owner of improved property on West Islip Road in the Town of Islip, fronting on a canal leading into the Great South Bay.

(2) As the result of the 1992/93 storms he incurred severe flooding of his premises which reached the floor boards of his house.

(3) A breach of the Fire Island Barrier Island would cause severe flooding and economic damage to Leonard Weinstein.

R. RICHARD STAFFORD and PAMELA RAYMOND

(1) Richard Stafford and Pamela Raymond, residing at Sayville, County of Suffolk, State of New York are the owners of improved property on Browns River Road, fronting on the Brown’s River in close proximity to the Great South Bay in Sayville, Town of Islip.

(2) A breach of the Fire Island barrier island would cause severe flooding and economic damage to Richard Stafford and Pamela Raymond.

S. SAYVILLE FERRIES SERVICE, INC. ("SAYVILLE FERRIES")

(1) Sayville Ferries, having its principal place of business at Sayville, County of Suffolk, State of New York owns a ferry terminal on River Road, Sayville, New York from which it operates eight (8) boats (seven (7) ferries) and one (1) fire department boat;

(2) It employs seventy (70) persons and services the communities of Water Island, Fire Island Pines, Cherry Grove, and Sailor’s Haven to which it transports hundreds of thousand of persons and significant volume of freight;

(3) It also operates a concession and transports visitors to Sailor’s Haven, the Sunken Forest and Barrett Beach (also known as Talisman).

(4) During past storms, the boats of Sayville Ferries were used to evacuate Fire Island;

(5) A breach of the Fire Island barrier island would cause severe flooding and detriment to public safety, disrupt its business and cause it substantial economic damage.

T. DAVIS PARK FERRY COMPANY, INC.

(1) Davis Park Ferry Company, Inc., having its principal place of business at Patchogue, County of Suffolk, State of New York owns a ferry terminal on the Patchogue River which leads to the Great South Bay in Patchogue, New York.

(2) It operates four (4) boats which carry passengers and freight, servicing the community of Davis Park and the National Park Visitor Center at Watch Hill on Fire Island.

(3) During past storms, its ferries were used to evacuate many persons from Fire Island.

(4) A breach of the Fire Island Barrier Island would cause severe flooding and detriment to public safety, disrupt its business and result in economic damage to the Davis Park Ferry Company, Inc. U. ROBERT JOHNSON

(1) Robert Johnson, residing at Huntington, County of Suffolk, State of New York is a Professor of Biology interested in and knowledgeable as to the educational value, proper use and protection of the tidal and freshwater wetland eco-systems within the estuary, and cultural and historic resources of Fire Island and Great South Bay.

(2) He serves as an expert consultant whose services include assisting property owners to obtain development permits in compliance with applicable Federal, State and local law, and he advises property owners in the proper use and management of the natural resources of the communities.

(3) A breach of the Fire Island barrier island and/or severe tidal erosion flooding or overwash would damage the natural resources of Fire Island and the Great South Bay and deprive him and other users of the Fire Island National Seashore of access to and the use and enjoyment of said resources.

V. JAMES R. GROVER, JR.

(1) Plaintiff, James R. Grover, Jr., is a former United States Congressman of the Second Congressional District on Long Island, which includes the South Shore Towns of Babylon and Islip.

(2) During his term of office from 1962 - 1974, he participated in the legislative process which led to the passage of the Fire Island National Seashore Acts, and was among those who introduced bills for the establishment of the FINS.

(3) He is a founding Director of, and served on the Board of the Fire Island Lighthouse Preservation Society, which maintains and operates the Lighthouse, and Keepers’ Quarters/Visitor Center, and keeps the facility open and accessible to the public to preserve through education the nautical and historical heritage of Fire Island and Long Island.

(4) He is an active sailor and boater, who continuously uses the recreational and economic resources of Great South Bay.

(5) Unless the F.I.I.P. is implemented, there is a serious risk of a breach of the Barrier Island, adverse impacts on the ecology, tide levels, and navigation channels of Great South Bay and its estuaries, and the impairment of public access to the Lighthouse, all of which would injure his interest as a user of the FINS resources.

10. The Defendants in this action are:

A. Defendant UNITED STATES DEPARTMENT OF THE INTERIOR is the federal agency that controls the national park system and that oversees the permitting program for activities within national parks.

B. Defendant GALE NORTON is the Secretary of the Department of the Interior and is sued in her official capacity. The Secretary is responsible for overseeing the national park system, including the Fire Island National Seashore.

C. Defendant CONSTANTINE J. DILLON is the Superintendent of the Fire Island National Seashore and is sued in his official capacity. The Superintendent is responsible for overseeing the management of the Fire Island National Seashore, including the proper stewardship of its resources.

D. Defendant US ARMY CORPS OF ENGINEERS, 441 G Street, N.W., Washington, D.C. 20314, is the federal agency that is responsible for the permitting program for dredging activities under the Rivers and Harbors Act and the Clean Water Act. Under the Fire Island National Seashore Act, the Corps of Engineers is authorized to undertake erosion control and beach protection measures at the Fire Island National Seashore.

E. Defendant GREGORY R. DAHLBERG, is Acting Secretary of the Army, Pentagon, 101 Army Pentagon, Washington, D.C. 20310, and is sued in his official capacity. The Secretary has responsibility for supervision of the US Army including the Corps.

F. Defendant LT. GEN. ROBERT B. FLOWERS is Chief of Engineers of the Corps, U.S. Army Corps of Engineers, 441 G Street, N.W., Washington, D.C. 20314, and is sued in his official capacity. The Chief of Engineers has responsibility for operating the permit program for dredging activities under the Rivers and Harbors Act and the Clean Water Act.

G. Defendant ERIN M. CROTTY, is the Commissioner of the State of New York, Department of Environmental Conservation (DEC), which is the principal non-federal sponsor of all combined federal-state shore protection projects constructed in the state and must certify such projects are consistent with the State's Water Quality Standards.

H. Defendant RANDY L. DANIELS, is the Secretary of the New York State Department of State ("DOS") and is responsible for determining that any federal-state shore protections program is consistent with coastal policies developed by the State pursuant to the Federal Coastal Zone Management Act.

11. This litigation centers around the barrier island known as Fire Island and its critical importance as a recreation and economic resource, as well as its role in protecting mainland Long Island from the ravages of Atlantic storms. Fire Island is approximately 31 miles long and varies between one-quarter to three-quarters of a mile in width. The island trends southwest to northeast beginning at the Fire Island Inlet, approximately 50 miles east of New York City. It is bounded by Moriches Inlet to the east, the Atlantic Ocean to the south and the Great South Bay and Moriches Bay to the north, and contains a mix of parks and residential communities. The parks on the Island include Robert Moses State Park, Fire Island National Seashore, Smith Point County Park, the Islip Town Beach at Atlantique, and the Brookhaven Town Beach at Davis Park. The parks were created primarily at taxpayer expense.

12. In all, parks make up approximately 80 percent of the Island's area, and all of Fire Island's ocean beaches are open to the public.

13. The communities of Fire Island comprise approximately 3,850 residences and businesses that are used and patronized primarily in summer. The summer weekend population of Fire Island can reach as high as 25,000 while the Island is home to some 400 year-round residents.

14. Visitors to Fire Island are numbered in the millions each year. Robert Moses State Park, which extends from the western limit of the Island 5.3 miles to the Lighthouse Tract, received 3.2 million visitors in 1995. Smith Point County Park, at the eastern end of the Island, extends 6.1 miles from Moriches Inlet to the eastern boundary of the Otis G. Pike High Dunes National Wilderness Area. Smith Point received 1.5 million visitors in 1995. Both parks contain parking fields, recreational facilities and administrative buildings. In 1995, approximately 1.2 million people visited the Fire Island communities and 500,000 visited National Seashore facilities.

15. The largest park on Fire Island is the Fire Island National Seashore (the "Seashore"), which extends from the eastern boundary of Robert Moses State Park to Moriches Inlet. All of the communities and other Fire Island parks, including Smith Point County Park, are maintained as private or municipal facilities within the boundaries of the Seashore. The Seashore's major federal tracts are identified as the Lighthouse Tract, Sunken Forest and Sailors Haven, Barrett Beach/Talisman, Blue Point Beach, Watch Hill, and the Otis G. Pike High Dunes Wilderness Area. There are other, non-major federal holdings within and between the communities.

16. Fire Island communities are located between Robert Moses State Park and the Otis G. Pike Wilderness Area, a distance of approximately 12 miles. The communities in the western half of the developed area are: Kismet, Saltaire, Fair Harbor, Dunewood, Lonelyville, Atlantique, Robbins Rest, Summer Club Condominium, Corneille Estates, Ocean Beach, Seaview, Ocean Bay Park and Point O'Woods. The eastern communities are Cherry Grove, Fire Island Pines, Water Island and Davis Park.

17. In contrast to the rest of the Long Island shoreline, Fire Island remained substantially undeveloped until bridges connected it to the mainland in the 1950s, whereupon the pace of development accelerated. The Fire Island National Seashore was established by Public Law 88-587 on September 11, 1964. Because the Seashore was created and barred the building of a road to connect the Robert Moses and Smith Point bridges, as far as is known, the Island is the only developed barrier island without a road -- either paved or dirt -- running its length.

18. It is generally accepted that the primary motivation for Congress in creating the Seashore was the strong support of residents and visitors to the barrier island who hoped, as an action of conservation, to preserve the undeveloped character of the Island, and making open land available for the Seashore while also preserving the existing communities. According to the terms of the enabling act, the Seashore was created "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." See 16 U.S.C. § 459(e).

19. To guide its activities in managing the Seashore, the U.S. Department of the Interior, through the National Park Service, adopted a General Management Plan (GMP) in March 1978.

A. The language in the enabling legislation describes the Island's close proximity to large concentrations of urban population, clearly implying that access by that population to the resource, is beneficial to society. The GMP, however, stresses managing the resource, so that increased use of federal recreation areas will be minimal. (See GMP, at 23). B. The GMP also notes that "Fire Island is a culturally manipulated barrier-island system, and it cannot be managed as if natural geomorphic processes had been totally unimpeded." See id.

C. As the GMP points out on pages 30 and 32, "Interference with the littoral drift at inlets along the south shore of Long Island has resulted in a pirating of sediments from the littoral drift into the inlets...Interruption of the drift has played a major role in the acceleration of erosion of Fire Island’s beaches. The natural geomorphic processes need to be restored in order for the offshore bar, beach, and island system to reestablish to some degree of equilibrium."

D. Also it is stated on page 33, referring to the Seashore lands as well as community land that, "Ocean-facing dunes will be repaired or restored as needed."

E. Notwithstanding the GMP, the Westhampton groin field just to the east of Moriches, which was completed in 1971 without being filled, as planned, and causing the pirating of millions of cubic yards of sand from the littoral drift, nothing has been done to repair and restore the sand deficit The FIIP is intended to protect the physical integrity of the barrier island so that it can serve both objectives of affording access to and assuring the managed use of the federal recreation areas.

20. The ferry companies report the following number of visitors to Fire Island in the year 2000:

To: Sailors Haven/Watch Hill (the National Park facilities): 44,760
To: Davis Park, Water Island, and Fire Island Pines, Cherry Grove: 270,671
To: Western communities from Ocean Bay Park to Kismet: 800,000

Thus, a total of almost 1.3 million visitors visited the communities; and less than 50,000 visited the Park facilities by ferry in 2000.

21. In 1960 the Congress authorized the Fire Island Inlet to Montauk Point, New York Combined Beach Erosion Control and Hurricane Protection Project pursuant to the River and Harbor Act of July 14, 1960, House Doc. 425, 1960.

22. Congress subsequently modified that project from time to time under the authority of the River and Harbor Act, and the Water Resources Development Act.

23. When Congress enacted the Fire Island National Seashore Act ("FINSA"), in 1964, it identified Fire Island as a national treasure worthy of conservation and preservation "for the use of future generations." 16 U.S.C. § 459 (e) (a). Congress placed primary responsibility for protecting this national resource with the Department of Interior, through the National Park Service ("NPS") as trustee. 16 U.S.C. § 459e-6(a).

24. At the same time, to assure the protection of the FINS, Congress specifically authorized the Corps of Engineers to undertake erosion control and beach protection measures in the area, requiring such measures to be coordinated with the Department of Interior and to be not inconsistent with the purposes of the FINSA. 16 U.S.C. § 459e-7(a).

25. Since its enactment of FINSA, Congress has repeatedly reaffirmed its commitment to protect and preserve this economically important natural resource treasure via amendments to FINSA and various pieces of companion legislation, such as the 1980 Fire Island Wilderness Act ("FIWA").

26. The FIWA specifically stated that "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." Pub. Law No. 96-585, 94 Stat. 3379 (codified as amended at 16 U.S.C. § 1132). In addition, the Act specified that "the southern boundary of the wilderness shall be the toe of the primary dune. (§a). Taken together, these provisions clearly indicate a Congressional intent to permit beach nourishment, when needed, along the entire length of Fire Island.

27. Other provisions of federal law, emphasize DOI’s trust responsibility to preserve important coastal resources such as FINS for future generations, including the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., the National Park Service Organic Act, 16 U.S.C. §§ 1 et seq., the Coastal Zone Management Act, 16 U.S.C. §§ 1251 et seq., and the Wilderness Act, 16 U.S.C. §§ 1131 et seq.

28. Similarly, the State of New York has enacted numerous pieces of related legislation which imposed upon the State Defendants’ the duties of public trustees, including the Flood Control Act of 1936, Articles 25 (Tidal Wetlands) and 34 (Coastal Erosion Hazard Area) of the Environmental Conservation Law, and the Waterfront Revitalization and Coastal Resources Act of 1981 (WRCRA), which was enacted pursuant to the federal Coastal Zone Management of 1972. 16 U.S.C. § 1451 et. seq. as well as Art. 14, Sect. 4 of the New York Constitution and Unconsolidated Law, Sect. 1531.

29. The goal of WRCRA is to establish a management framework for coordinating State laws and rationalizing decisions of the Federal, State and local governments in the coastal area through administrative adoption of 44 policy statements that are intended to protect the State’s environment and coastal areas, including Fire Island.

A. THE DEFENDANTS’ VIOLATION OF ENGINEERING PRINCIPLES

30. The Defendants have neglected and failed to comply with known engineering principles in a way that has led to the destruction of more than 100 homes on the Fire Island barrier island and that presently threatens significant flooding damage to the mainland.

31. The prevailing littoral current along Fire Island's Atlantic Ocean is from east to west. When a government entity installs groins, sound engineering principles require that a multi-groin project should be started at the westerly or down drift end of the project area and proceed toward the east, or sand will be diverted from the littoral current and captured within the groins, as each is constructed thus depriving the down drift areas of sand nourishment they would otherwise have received. Good engineering, and the plan at that time, called for fill to be placed to the ends of the groins so that they do not trap more sand from the littoral current, thus depriving the beach to the west, of nourishment. The withdrawal of governmental support from the project violated sound engineering principles and the plan at the time, thus causing no sand fill to be used between groins, and stopping or reducing all sand flow towards the west.

32. However, the Defendants implemented a project that contradicts these fundamental engineering principles. In the case of the Westhampton Beach project, the groin field was started in the middle of the Moriches to Shinnecock reach, at the Village of Westhampton Beach, instead of at the westerly end. The project was started with eleven (11) groins, but no fill was placed on the beach or dunes between the groins.

33. The Defendants’ groin project in Westhampton Beach and inlet stabilization projects at Moriches and Shinnecock Inlets are primarily responsible for creating, intensifying and perpetuating a littoral drift deficiency which has had a substantial and significant impact on the total erosion experienced on Fire Island in the last four (4) decades.

34. The principal erosion problems caused or exacerbated by the Defendants’ projects are:

A. The use of jetties at Shinnecock and Moriches causes sand to be "jetted" offshore where it forms floodtide and ebb deltas instead of proceeding to the west. Maintenance of navigational channels through the inlet adds to this problem exacerbates this phenomenon;

B. The groins at Westhampton Beach exacerbated Fire Island erosion by allowing no sand to move around the groin fields until the groin compartments had been filled – a decades-long process;

C. No (or insufficient) nourishment volumes were placed in the groin field upon the construction and the Defendants did not follow best management practices that nourishment be placed to satisfy groin trapping capacity;

D. The scale of the Westhampton groins was thus too large, thereby trapping a greater volume of sand (which was denied to the down coast reaches) than was necessary to the area protected;

E. The near elimination of beach fills between 1974 and 1995 measurably reduced the supply of sand in the Fire Island littoral system;

F. The Defendants failed to close the 1991-1992 Westhampton breach in a timely manner, allowing an unnecessarily huge amount of sand loss to the bay shoals, which sand volumes are now permanently lost from the littoral system; and,

G. The Defendants’ failed to rebuild dunes after storms along eastern Fire Island. This has allowed washovers to persist and has increased the frequency of berm overtopping and sand losses to the back barrier, causing a permanent loss to the littoral system, accelerated erosion, and a wave of erosion that is propagating down coast in a westerly direction.

H. It is uncertain when in the continuing series of the events of tidal erosion, flooding and Physical Invasions, plaintiffs’ properties were taken and the nature, extent and permanency of the takings, because of the continuing insidious and gradual character of the natural erosion process, compounded, accelerated and intensified by the defendants’ projects and lack of proper maintenance, and the fact that the defendants have set forth for years the continuing promise, justifiably relied on by plaintiffs, that the FIIP would be undertaken, which would mitigate the erosion plan and restore the littoral flow of sand.

35. The Defendants participated as partners in and aided and abetted each other in the negligent design, construction and maintenance of the Westhampton and other projects, and acquiesced in their collective failure to take corrective action to avoid or mitigate the injurious consequences of those projects.

36. The Defendants continue to be partners in the now modified Westhampton and other projects that caused or contributed to disruption of the littoral system, which causes and contributes to such accelerated erosion and physical invasions of private property.

37. The March 1962 nor’easter (the Ash Wednesday Storm) destroyed 47 houses and severely damaged 75 other properties on Fire Island with damages estimated in the millions of dollars. The Corps, with the cooperation of the cognizant agencies of the State of New York, responded immediately in a project known as Operation Five High so named after the five high tides of the storm’s duration. On Fire Island, 1.1 million cubic yards of sand was placed along 8.5 miles of shoreline 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. But such beach maintenance and repair has been discontinued by the Corps and the State east of Fire Island Inlet.

38. Between 1991 and 1996, wave action from normal as well as extreme coastal storms again pounded unchecked against a beach deprived of its natural littoral budget or complement of sand, and destroyed individual properties and threatened communities on the island. The series of storms from 1991 to 1996 destroyed approximately 90 properties and caused over $1 billion dollars in damage to FINS, State, County and Municipal properties.

39. By contrast to the 1962 storm response, the State Defendants did nothing in response to the 1991-96 storms other than participate in closing the severe breach that had opened down drift of the uncompleted groin field. The State simply called on the Corps to study the situation - - - a decision to do nothing, which continues today.

40. The improperly installed and uncompleted coastal management structures, and the failure to properly maintain area beaches through application of well-established engineering principles and techniques has greatly impaired the Fire Island barrier’s ability to provide erosion and storm protection to the Long Island mainland.

41. Defendants’ mismanagement has resulted in interruption of the westerly littoral flow of sand along the barrier island system, and has substantially depleted the sand (sediment budget) which serves as a continuing source of replenishment for Fire Island. This movement of sand provides a vital and natural form of beach replenishment that allows the shoreline to reconstitute itself and fortifies the island against storm events. This greatly reduces Fire Island's ability to serve as a flood protection barrier for the south shore of Long Island against Atlantic Ocean waves.

42. The Defendants’ mismanagement of the coastline has impaired the littoral flow along Fire Island causing an accelerated erosion rate and substantial and repeated erosion, and greater physical invasions than necessary under the impact of repeated storms.

43. Additionally, these storms caused numerous breaches and washovers that have not only severely impaired the Island’s ability to endure future storm events, but have put at risk degradation and extremely rare fresh water wetland estuarine ecology systems and aquifers and their associated habitats on Fire Island.

44. Following the storms of 1992 - 1993, New York State requested the Corps to survey the State’s Atlantic coastline, which it did in cooperation with the Defendant New York Department of Environmental Conservation ("NYSDEC"). The purpose of the survey was to recommend response actions that the State, in cooperation with the Corps, could undertake to maintain the geologic integrity of the Fire Island barrier and maintain its capacity to protect the low-lying areas of Long Island’s south shore.

45. The Corps/NYSDEC recommendations included the following: prompt modification of the Westhampton Beach groin field; implementation of a Breach Contingency Plan; sand bypassing at south shore inlets; and sand nourishment projects where needed, including Fire Island. These recommendations were consistent with those of the Coastal Erosion Task Force that was created by Governor Cuomo in the aftermath of the December 1992 storm.

46. At the request of the State, in 1994, the Corps conceived, designed and formulated the FIIP to serve as a "bridge" to what was expected to be a more comprehensive solution, the Fire Island Inlet to Montauk Point Reformulation Study. This study was required as a result of action by the President's Council on Environmental Quality (CEQ) in 1978. CEQ called for a new Environmental Impact Statement (EIS) for the reformulated project to consider the entire 83-mile reach as a single system and to consider a wider range of alternatives for beach fill and other structures for that stretch of the coastal region. The purpose of the FIIP was to mitigate damage done by prior government projects and to design a project in keeping with sound engineering principles that would serve to protect the reach until the long-term project was approved.

47. While the FIIP is interim in nature, it is an incremental step compatible with, and to be integrated with the Reformulation Study, which is designed to outline a more comprehensive long-term project proposing beach replenishment, dune restoration and breach management for the 83-mile stretch from Fire Island Inlet to Montauk Point.

48. The Reformulation Plan will require the approval of the various agencies involved, which include the Defendants, who support the development of such plan. The current "reformulation planning" has set its course with most participants supporting the idea of acquiring some 380 oceanfront properties, including some 360 structures. This is apt to unduly delay approval of any Reformulation by Defendants because of the many expected lawsuits regarding "unconstitutional takings."

49. Upon information and belief, based on public comments by the Corps, completion of the Reformulation EIS will not be prepared until, at minimum, 2004, and actual construction will not likely occur until many years later. This project will not provide the immediately necessary beach and dune protection, which can only be achieved through prompt approval and implementation of the FIIP.

50. The FIIP has been substantially modified over the past 4 years in response to demands of the DOI. For example:

A. The project definition has evolved from a 30-year project with 6 renourishment cycles to a 6-year project with one renourishment cycle;

B. The relationship between the FIIP and the Reformulation Project has been redefined, to clarify that the FIIP will truly be an interim project; and

C. The extent and location of sand placement has been altered in response to the concerns of the DOI’s National Park Service. The placement of sand has been kept to a minimum in areas of major federal land holdings so as to focus sand placement and dune construction in development areas.

51. In many meetings over the course of 1998-99, DOI met with Corps and proceeded to delete Corps planned areas of fill including one in particular at Barrett Beach/Talisman which the Corps had identified as having a high potential breach area along with Old Inlet. Corps tried to accommodate such demands, thinking DOI might then approve this minimal FIIP project. But DOI eventually withdrew support for any sand on federally owned stretches of beach except in front of the Fire Island Lighthouse, which was on the west end of the Seashore, beyond the areas of littoral sand movement in front of developed areas.

52. In fact, on June 23, 1999, Joseph Westphal, Assistant Secretary of the Army (Civil Works) and Donald Barry, Assistant Secretary for Fish, Wildlife and Parks, transmitted the Partnership Agreement to Senator Moynihan and colleagues, setting forth six principles of cooperation to "facilitate the completion, on schedule, of the important studies and analyses required prior to decisions on both of the Interim Projects." However, Army and Interior have failed to comply with WRDA 1999, Sec. 342..

53. In December 1999, the Corps issued a Draft EIS covering the FIIP that elicited overwhelming public support, at a public hearing held on January 12, 2000, from both the Fire Island residents and businesses in the flood zone on the mainland.

54. The Environmental Protection Agency rated the project as LO-1 indicating, in its own words, that "the project will not result in significant adverse incremental impacts" and that EPA "does not object to its implementation."

55. Despite the Corps’s readiness and willingness to proceed with the project, and to perform its duty as required by FINSA, the Defendants DOI, DOS and DEC have acted individually and in concert to prevent bringing the review process to closure.

56. Although no known scientific study supports its theory, the DOI has alleged that it is the presence of improved properties within the dune area, and not the Atlantic Ocean, which is the major cause of the accelerated erosion rate on Fire Island.

57. Restrictions on the extent and location of sand placement demanded by the DOI are contrary to the intent of Congress and to sound engineering principles, because they do not provide the Fire Island east end communities, such as Davis Park, of sufficient sand to protect them against, and mitigate the effects of the accelerated erosion and physical invasions caused by the Defendants prior projects.

58. The Corps readily admits that removing houses will in no way serve to "meet the storm damage reduction objectives or reversibility constraints for interim protection."

59. Upon information and belief, DOI’s objective in blocking or delaying the FIIP, is to acquire over 300 properties located in or near the dune area despite their status as being exempted from condemnation as improved properties, pursuant to the FINS Act (Section 16 U.S.C. 459e), with the intent or effect that future erosion and flooding events may destroy or so damage the 380 properties it wishes to acquire, as to lower their cost of acquisition.

60. A. In furtherance of the DOI objective, the defendant Dillon published and otherwise disseminated information, lacking any known scientific basis, that the presence of ocean front houses is the primary cause of accelerated beach erosion, despite his knowledge that the Corps has rejected his opinion and that the causal factors are those set forth in this Complaint;

B. He has threatened, without legal justification, to withdraw the prior approval of the Town of Islip’s zoning ordinance by the Secretary of Interior, as a means of vacating the certificates of suspension of condemnation authority given by the Secretary to the owners of improved ocean front property in the Town of Islip, thereby facilitating the acquisition and removal of those homes; and

C. He has adopted a policy to oppose any beach nourishment, as proposed by the FIIP unless the more than 300 homes he has identified in the dune areas, are removed.

61. Thus, the Corps’s inability to finalize the EIS process and implement the vitally needed FIIP is clearly traceable to the self-defined "mission of the National Park Service to implement a policy of retreat through acquisition," no matter what the cost in lives and property of Fire Island and mainland residents.

62. Congress, noting that its intention to protect and preserve FINS was being frustrated by bureaucratic recalcitrance, enacted legislation requiring and explicitly instructing the Federal agencies to complete all procedures and consultations and submit a mutually acceptable FIIP to Congress by December 31, 1999. (WRDA 1999, Section 342).

63. The Corps and DOI did not meet this deadline. The primary Federal responsibility for this failure to comply lies, not with the Corps, which has continued to be ready, willing and able to fulfill its duty to proceed with all steps necessary to implement the FIIP, but with the DOI, which has failed and refused to perform its duty to cooperate in good faith with the Corps. Although the Corps wrote letters on December 17, 1999 to Congress promising that the Corps would complete the final documents by the Spring of 2000 and make final recommendations, this has not occurred because the DOI has ignored Congress’ explicit instructions, and the DOI and State agency defendants have continued to delay responses. The primary State responsibility for these failures lies, not with the DEC, whose engineering experts favor the FIIP, but with the NYDOS which supports the DOI’s objective of removing the over 300 houses in the dune areas before any breach nourishment takes place.

64. Unable to compel these agencies to finalize their review, the Corps may abandon its plans to implement the FIIP unless judicial relief is obtained.

65. The Defendant State agencies have further frustrated the Corps’ efforts to bring the FIIP to fruition.

66. The NYDEC wrote to the Corps on November 30, 1999, that it would be able to issue the necessary Water Quality Certificate, and NYDOS could issue the Consistency Determination, required under the Federal Coastal Zone Management Act, if no new issues came up during the public comment process.

67. No new issues arose and yet both NYDOS and NYDEC have not only failed to provide these approvals; they haven’t even submitted formal comments on the DEIS more than a years after the close of the official comment period.

68. On information and belief, several Fire Island communities, frustrated over inaction on the FIIP, have submitted applications to dredge and renourish the severely eroded beaches and dunes in their respective communities.

69. On January 3, 2001, plaintiff NYCP served a Notice of Intent to Sue upon the defendants calling upon them to proceed with the FIIP, but the defendants have not responded thereto.

70. Plaintiffs incorporate by reference paragraphs 1-69.

71. The Defendants’ conduct has caused and continues to cause repeated and continuing accelerated erosion, Physical Invasions of, and substantial injuries and damage to the properties of oceanfront owners on Fire Island, and the south shore of the mainland.

72. The predictability, frequency and permanency of the accelerated erosion, and Physical Invasions, and the extent of resultant damage are uncertain, and not readily foreseeable.

73. The uncertainty is compounded by the failure of the Defendants’ to keep their promises to apply for and issue the required permits and certifications and to take timely corrective action to repair, mitigate and prevent said accelerated erosion and Physical Invasions by proceeding with the FIIP and Reformulation Plan.

75. The Defendants breach of their continuing duties and promises to act on required Federal and State permits and certifications during the period described in the Complaint have caused the continuing, accelerated erosion and Physical Invasions and injuries sustained by the Plaintiffs.

76. The Defendants’ conduct misled the Plaintiffs into believing that such approvals would be given, and corrective action taken.

77. The Defendants’ conduct constituted de facto takings of Plaintiffs’ properties, as to which this action was timely commenced in violation of the Fifth and Fourteenth Amendments of the United States Constitution.

78. Plaintiffs incorporate by reference paragraphs 1-77.

79. The Plaintiff Fire Island oceanfront owners have a legitimate claim of entitlement, and economic expectancy and reliance, giving rise to constitutionally protected property interests, based on:

A. Their ownership of the properties eroded, physically invaded and injured as the result of the acts complained of; and

B. Their right to the unobstructed natural littoral drift of Atlantic Ocean offshore sands, whose flow replenishes the beach and their dunes, which flow was interrupted and trapped by Defendants’ projects; and

C. Their right under the common law Doctrine of Avulsion which holds that when an oceanfront owner loses part of his property, suddenly and forcibly, the owner does not lose title to that part of his property even after the passage of time and is entitled to retrieve it. Plaintiffs have the right, vindicated and implemented in the FIIP, to retrieve sands to replace those lost from their properties as the result of repeated sudden and continued forcible Physical Invasions caused by the government projects complained of which were negligently designed, constructed and maintained, and continue to cause the de facto takings described herein; and

D. Federal and State statutes, judicial and administrative decisions, authorizations, agreements, understandings, projects, and practices, including those referred to in this Complaint which impose non-discretionary mandates upon the Defendants to proceed with the FIIP, which plaintiffs relied upon.

80. As a consequence of Defendants’ multiple and continuing breaches of duty, and de facto takings:

A. The properties, dunes and sands owned by Fire Island oceanfront owners have been subjected to repeated, sudden and forcible, Physical Invasions and torn away, and will continue to be so injured, and

B. There has occurred and continues to occur, obstruction and interference with the littoral drift of Atlantic Ocean near shore sands causing an acceleration of the rate of erosion and Physical Invasions of the Plaintiffs’ properties and destruction and weakening of the capability of the dunes to prevent overwash and destruction of Fire Island's natural resources.

81. By such Federal action, and by failing to implement the FIIP, the Federal Defendants have injured the Plaintiff oceanfront owners and their property in violation of the due process and just compensation clauses of the Fifth Amendment of the United States Constitution.

82. By acting as partners of the Corps in the projects which have accelerated the erosion and Physical Invasions of Plaintiffs’ properties on Fire Island and increased the likelihood of a breach of the Fire Island barrier island, and its resultant damage to south shore mainland properties the State Defendants have participated in and aided and abetted the Federal Defendants in the de facto takings and deprivations of Plaintiffs’ property rights.

83. By such action, and by failing to issue the certifications required to proceed with the FIIP, the State Defendants, have taken from the Plaintiff oceanfront owners their properties in violation of the due process and just compensation clauses of the Fourteenth Amendment, Section 1., and Article I, Section 7 of the New York State Constitution.

84. By participating with the Federal Defendants in the de facto takings and deprivations of Plaintiffs’ property rights and breaching their duties under Federal and State law and their promises to mitigate the damages caused, 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.

85. Plaintiffs incorporate by reference paragraphs 1-84.

86. Implementation of the FIIP requires a number of State and Federal approvals, most notably a Special Use Permit from the National Park Service, Department of the Interior.

87. Early in the initial planning process, the Corps requested and was assured maximum cooperation of the NYDEC, NYDOS, and DOI in the permit approval process for each of their respective jurisdictions.

88. Yet, since first proposing the FIIP, the Corps has repeatedly been frustrated in its efforts to move forward with the FIIP due to the Defendants’ failures to act on permit requests.

89. The DOI has refused to take action on the Corps’ request for a Special Use Permit, or has demonstrated to the Corps that such request would be futile, that would allow the Corps to undertake sand nourishment at FINS.

90. On numerous occasions, DOI has disregarded its statutory duties, ignoring the Corps’ repeated requests for cooperation in the consultation process for various aspects of the FIIP, including the examples which follow:

A. The DOI conducted a bad-faith review of the Draft EIS ("DEIS") for the FIIP by raising spurious concerns where no other Federal or State regulatory agency (including the United States Environmental Protection Agency) has raised an objection.

B. The DOI repeatedly requested additional justification for the project long after having recognized the need.

C. The DOI refused to respond to the Corps' repeated requests to conclude Section 7 consultation pursuant to the Endangered Species Act.

91. The DOI, the Corps, NYDOS and NYDEC have each breached their fiduciary duties under the various Federal and State laws to protect and preserve FINS and the south shore of Long Island in the following manner:

A. The Defendants ignored their duty to "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).

B. The Defendants ignored their duty to "undertake or contribute to shore erosion control or beach protection measures on lands within the Fire Island National Seashore ...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 [the FINSA]." 16 U.S.C. 459e -(7(a).

C. The Defendants failed to "undertake all necessary actions to prevent or minimize the destruction, loss of, or injury to park system resources, or to minimize the imminent risk of such destruction, loss, or injury." 16 U.S.C. § 19jj-2(b)(1).

D. The Defendants failed to complete their regulatory reviews and to submit a mutually acceptable FIIP to Congress by December 31, 1999 as directed under WDRA, § 342.

E. The Defendants failed to complete the Endangered Species Act section 7 consultation process regarding the piping plover in the time frame mandated by law.

92. By ignoring their statutory duties to comply with these mandates, the Defendants have effectively exercised a veto over the Congressional mandate that the Corps undertake necessary storm protection measures under the FIIP. This has had, and continues to have, the direct consequence of jeopardizing the lives, property and resources of Fire Island and the Long Island South Shore.

93. Plaintiffs incorporate by reference paragraphs 1-92.

94. The Federal Administrative Procedure Act ("APA") allows a Federal Court to set aside agency action "unreasonably delayed" or "unlawfully withheld," 5 U.S.C. § 706(1). 95. Through the pattern and practice discussed above, the DOI and Corps have violated the APA.

96. The DOI unreasonably delayed taking action on the Special Use Permit despite its August 1, 1996 letter to the Corps clearly indicating an intention to do so.

97. The DOI failed to complete the Endangered Species Act Section 7 consultation process regarding the piping plover in the time frames mandated by law.

98. The Corps failed to take appropriate action to enforce Defendant DOI’s duty to perform its duty under the FINS to cooperate in developing an erosion protection plan for Fire Island and to honor its commitment to timely cooperate in the implementation of the FIIP.

99. The DOI and the Corps’ failed to abide by the clear congressional directive of Section 342 of WRDA regarding expeditiously completing all environmental reviews.

WHEREFORE, Plaintiffs respectfully request that this Court:

(1) declare that the DOI has a duty to cooperate in good faith and in a timely manner

with the Corps in undertaking erosion control and beach protection measures as required by

FINSA, 16 U.S.C. Section 459-e, 7(a);

(2) declare that the DOI and Corps have a duty to complete all procedures and submit a mutually acceptable FIIP to Congress as required by WRDA 1999, Section 342;

(3) declare that the DOI complete the Endangered Species Act Section 7 consultation process and issue a determination on the Corps application for a Special Permit pursuant to Section 7 of that Act;

(4) declare that the NYDEC is under a duty to take action on request for certification, required under Section 401 of the Clean Water Act;

(5) declare that the NYDOS is under a duty to issue the consistency determination required under the Federal Coastal Zone Management Act;

(6) declare that the Defendants are public trustees with fiduciary duties to protect the natural socio-economic, cultural resources and public and private properties located within the Fire Island National Seashore and the area designed to be protected by the FIIP as required by the Federal and State statutes enumerated in the Complaint;

(7) direct that the Defendants complete all procedures required to implement their duties as aforesaid and submit a mutually acceptable FIIP to Congress as soon as practicable;

(8) enjoin the Defendants from allowing the de facto takings of Plaintiffs’ properties to continue;

(9) enjoin the DOI from taking any action which would condemn improved properties which are exempt from condemnation pursuant to 16 U.S.C. Section 455-e-7(a)

(10) enjoin the DOI, NYDEC and NYDOI from refusing or failing to cooperate with the Corps in the completion of all procedures required to complete the National Environmental Policy Review Process and the consultation over the FIIP as directed by the Congress;

(11) retain jurisdiction of this matter until the Defendants have fulfilled all statutory and regulatory responsibilities with regard to the FIIP;

(12) award plaintiffs reasonable attorneys fees and any expert witness fees;

(13) award Plaintiffs interest and the costs and disbursements of this action; and

(14) grant Plaintiffs such other and further relief as this Court may deem just and proper.

Dated: Babylon, New York June , 2001

Respectfully submitted,
REILLY, LIKE, TENETY & AMBROSINO

By
IRVING LIKE
179 Little East Neck Road North
Babylon, New York 11702
(631) 669-3000

LEON FRIEDMAN
148 East 78th Street
New York, New York 10021
(212) 737-0400

Attorneys for Plaintiffs

Of Counsel:
Lawrence R. Liebesman, Esq.
Rafe Petersen, Esq.
HOLLAND & KNIGHT LLP
2099 Pennsylvania Avenue, N.W.
Suite 100
Washington, D.C. 20006-6801
Telephone: 202.419.2477