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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
NEW YORK
COASTAL PARTNERSHIP, INC.,
Hon.
Jacob Mishler Plaintiffs, (Boyle,
U.S.M.J.)
-against-
UNITED
STATES DEPARTMENT OF
INTERIOR, et al.,
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
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
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
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