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| The Fire Island Association is not a party to the lawsuit brought by the New York Coastal Partnership, described in the following complaint. After discussion, the FIA Board of Directors concluded that, while Board members may, as individuals, support the factual assertions in the complaint, FIA should not be a party to it as doing so could interfere with necessary communications between our organization and the various state and federal agencies
named in the suit. Accordingly, the complaint is provided strictly as a matter of information and should not be regarded as an endorsement of the lawsuit.
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------------X NEW YORK COASTAL PARTNERSHIP, INC., et al.,
NO. CV 01-2777 Hon. Jacob Mishler Plaintiffs, (Boyle, U.S.M.J.) -against- UNITED STATES DEPARTMENT OF INTERIOR, et al., Defendants. ------------------------------------------------------------------X PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO FEDERAL AND STATE DEFENDANTS’ MOTIONS TO DISMISS AND IN SUPPORT OF PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT Irving Like, Esq. Leon Friedman, Esq. Attorneys for Plaintiffs Lawrence R. Liebesman Of Counsel STATEMENT OF THE CASE A. The Fire Island Barrier SUMMARY OF ARGUMENT I. THE CLAIMS BROUGHT BY PLAINTIFFS ARE NOT BARRED BY SOVEREIGN IMMUNITY II. UNDER THE ADMINISTRATIVE PROCEDURE ACT, REVIEW OF ALLEGED VIOLATIONS OF FEDERAL LAW IS NOT PRECLUDED AS AGENCY ACTION “COMMITTED TO AGENCY DISCRETION BY LAW.” INDEED, THE FEDERAL DEFENDANTS’ VIOLATION OF SECTION 342 OF WRDA 99 IS SO CLEAR THAT SUMMARY JUDGMENT IS APPROPRIATE. The Underlying Statutes Demonstrate that the Agency Actions At Issue Here Are Not Committed to Agency Discretion by Law Such as to Preclude Judicial Review.
1. The FINS Act is unambiguous in its directives to the agencies to protect the resources of the FINS. c. The legislative history of the 1964 FINS Act amply supports the plain meaning of the Act that protective measures be taken to preserve the Seashore from erosion. d. This Circuit has recognized that the FINS Act provides jurisdiction for judicial review. 2. Section 342 of WRDA 1999 was a clear statement that action must be taken to Implement the FIIP. The Federal Defendants have failed to meet the express requirements of that
law, and therefore Summary Judgment is appropriate. 3. The Park Service Organic Act requires the Park Service to take affirmative action to preserve FINS resources 4. Under NEPA, it is the federal government’s responsibility to utilize resources so as to fulfill this generation’s responsibilities as trustee of the environment for future generations. 6. APA review is proper for violations of the Coastal Zone Management Act. B. Defendants’ Reliance on Heckler is Unpersuasive. C. III. APA REVIEW IS APPROPRIATE IN LIGHT OF PRAGMATIC CONSIDERATIONS OF FINALITY A. The Defendants Actions Are Final Under the APA 1. The recent denunciation of the FIIP is “final action” given that the agencies have affirmatively rejected a course of action b. This delay is even more unreasonable given that human health, welfare, and injury to Plaintiffs properties are at stake. c. The Court should consider the effect of expediting delayed action on agency activities of a higher or competing priority. In addition, the Court should take into account the nature and extent of the interests prejudiced by delay 3. Inaction becomes “final action” when the agency delays in responding to the proposal beyond the time in which action could be effective. IV. PLAINTIFFS SUFFICIENTLY STATE CONTINUING TAKING CLAIMS AGAINST THE FEDERAL AND STATE DEFENDANTS FOR WHICH INJUNCTIVE AND DECLARATORY RELIEF ARE AVAILABLE A. The Complaint Properly Alleges a Claim for Taking Under the 5th Amendment V. PLAINTIFFS HAVE NO MEANINGFUL STATE POST-DEPRIVATION REMEDY FOR THE CONTINUING DE FACTO TAKINGS AND VIOLATION OF THEIR PROPERTY RIGHTS VI. THE ELEVENTH AMENDMENT DOES NOT BAR THE INSTANT ACTION WHICH IS FOR PROSPECTIVE INJUNCTIVE RELIEF AGAINST AGENCY OFFICIALS WHOSE CONDUCT VIOLATES PLAINTIFFS’ CONSTITUTIONAL RIGHTS VII. DEFENDANTS HAVE VIOLATED THEIR FIDUCIARY DUTIES AS PUBLIC TRUSTEES TO PROTECT THE NATURALSOCIO-ECONOMIC, CULTURAL RESOURCES AND PUBLIC AND PRIVATE PROPERTIES LOCATED WITHIN THE FINS A. The Courts of New York recognize the public trust doctrine CONCLUSION
GLOSSARY OF TERMS AND ACRONYMS AND ACRONYMS" APA Administrative Procedure Act Corps Army Corps of Engineers CZM Coastal Zone Management CZMA Coastal Zone Management Act DDD Draft Decision Document DEIS Draft Environmental Impact Statement DOI Department of the Interior NPS National Park Service NYSDEC New York Department of Environmental Conservation SAC Second Amended Complaint Seashore Fire Island National Seashore TRAC Telecommunications Research and Action Center v. FCC WRCRA Waterfront Revitalization and Coastal Resources Act of 1981 WRDA 99 Water Resources Development Act of 1999 PRELIMINARY STATEMENT This is a case about the failure of several government agencies to act in the face of clear and direct statutory and constitutional mandates to protect the lives, property and resources of the Fire Island barrier and the Long Island mainland from the ravages of Atlantic storms. It concerns the failure to complete a process, that was well underway, to put in place a carefully designed remedy - the Fire Island Interim Storm Damage Protection Project (“FIIP”) - to a recognized problem. Indeed, the damage caused by Defendants’ ill-designed and maintained projects to the east of Fire Island has inflicted significant TABLE OF CONTENTS |